July 8, 2008
Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U))
https://www.beynensonlaw.com/case-law/freeport-med-p-c-v-utica-natl-ins-co-of-tex-2008-ny-slip-op51448u/
- Decided
- July 8, 2008
- Citation
- 2008 NY Slip Op 51448(U) · 20 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U))
| Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. |
| 2008 NY Slip Op 51448(U) [20 Misc 3d 132(A)] |
| Decided on July 8, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2007-817 N C.
against
Utica National Insurance Company of Texas, Appellant.
Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered March 12, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment on the ground that the assignor’s injuries did not arise out of an insured incident. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.
Contrary to defendant’s contention, the affidavit submitted by plaintiff in support of its motion for summary judgment established that plaintiff’s biller possessed sufficient personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (cf. Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the court below properly determined that plaintiff made a prima facie showing of its entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Although defendant admittedly failed to pay or deny plaintiff’s claims within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), and failed to establish that said period was extended by a timely request for verification (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), it was not precluded from raising its defense of lack of coverage based upon its conclusion that the underlying loss was the result of an intentional act (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). However, the affidavit of defendant’s investigator, submitted in opposition to plaintiff’s motion and in support of defendant’s cross motion for summary judgment, was insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, the court below properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Legal questions (2)
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.
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
Held the biller's affidavit showed sufficient personal knowledge of the provider's practices to lay a business-records foundation, so the provider made its prima facie showing.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held the insurer's investigator affidavit insufficient to show a founded belief that the loss resulted from an intentional act, so summary judgment for the provider was affirmed and the insurer's cross motion denied.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) Contrasted (cf., but see)An insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) Contrasted (cf., but see)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Similar decisions
- A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.
- A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.
- Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))The insurer's submissions supported a founded belief that the alleged injuries did not arise out of an insured incident.
- Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials.
- AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))An untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.