Excel Radiology Servs., P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52444(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered June 25, 2008, deemed from a judgment of the same court entered July 30, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention on appeal, the affirmations submitted by plaintiff’s president, a physician, in support of the motion were sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

On appeal, defendant characterizes its defense as one based upon fraud and relies solely on A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (3 Misc 3d 130[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists 2004]), in which the Appellate Term for the Ninth and Tenth Judicial Districts held that the insurer “establish[ed] the existence of a triable issue of fact as to whether there was a lack of coverage because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).” In the case at bar, defendant has not alleged that no motor vehicle accident occurred or [*2]that the accident was staged. Rather, defendant contends that it raised a triable issue as to whether the assignor’s daughter was in the car at the time of the accident. However, contrary to defendant’s contention, the assignor’s alleged misrepresentation of the presence of her daughter in the car is irrelevant to the question of whether the assignor’s injuries arose from an insured incident. Accordingly, as defendant failed to demonstrate the existence of a triable issue of fact in opposition to plaintiff’s motion for summary judgment, the judgment is affirmed.Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009