February 28, 2006
Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50859(U))
https://www.beynensonlaw.com/case-law/fair-price-med-supply-corp-v-elrac-inc-2006-ny-slip-op-50859u/
- Court
- Appellate Term, Second Department
- Decided
- February 28, 2006
- Citation
- 2006 NY Slip Op 50859(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50859(U))
[*1]| Fair Price Med. Supply Corp. v ELRAC Inc. |
| 2006 NYSlipOp 50859(U) |
| Decided on February 28, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-706 K C.
against
ELRAC Inc. & Enterprise Rent-A-Car, Respondents.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered March 22, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
Plaintiff commenced this action to recover $930 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an order entered March 22, 2005, insofar as appealed from, the court below denied plaintiff’s motion.
The deficiency in plaintiffs’ moving papers concerning proof of its submission to defendants of the $930 claim was cured by the denial of claim form, dated May 19, 2003, annexed to defendants’ opposition papers which states that defendants received the $930 claim on May 14, 2003 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). In opposition to plaintiffs’ motion for summary judgment, defendants annexed unsworn reports by defendants’ doctors which were insufficient to establish the lack of medical necessity and rebut plaintiff’s prima facie showing (see e.g. Amaze Med. Supply Inc. v
Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & [*2]11th Jud Dists]).
Defendants, however, also asserted that “there was a fraudulent scheme in the happening of the accident.” We find that defendants’ papers sufficiently demonstrate defendants’ “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, defendants demonstrated the existence of a triable issue of fact as to
whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d
557 [1980]), and, thus, the court below properly denied plaintiff’s motion for summary judgment.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 28, 2006
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried
Held the insurer's papers sufficiently showed a founded belief that the injuries arose from a fraudulent accident scheme, raising a triable issue of coverage and defeating the provider's motion.
Of the 216 decisions on this question in the Second Department courts and the Court of Appeals, 100 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the gap in the provider's proof of submission was cured by the insurer's denial form admitting receipt of the claim, so the provider's prima facie showing was made.
Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 446 (this one included) are in the same category.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited) (rules on the question, but another ground decided the case)
Held the insurer's unsworn doctors' reports were insufficient to establish lack of medical necessity or rebut the provider's showing.
Of the 612 decisions on this question in the Second Department courts and the Court of Appeals, 107 (this one included) are in the same category.
Cited in this decision
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
- A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 50088(U))MVAIC's 30-day period to pay or deny begins upon receipt of proof of claim, rather than after it qualifies an eligible insured.
Similar decisions
- Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U))The insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.
- Fair Price Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50357(U))The provider and insurer failed to establish entitlement to summary judgment because their affidavits lacked the necessary personal knowledge.
- Fair Price Med. Supply Corp. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50168(U))The provider's corporate officer affidavit failed to lay the business-records foundation needed to establish a prima facie case.
- Fair Price Med. Supply Corp. v Tri-State Consumer Ins. Co. (2007 NY Slip Op 50152(U))The provider's corporate officer affidavit failed to establish a business-records foundation for the documents supporting summary judgment.
- Fair Price Med. Supply Corp. v Allstate Ins. Co. (2007 NY Slip Op 50608(U))The provider's officer affidavit failed to establish a business-records foundation, defeating its prima facie summary judgment showing.