December 21, 2011

Friendly Physician, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52359(U))

Headnote

The court considered the fact that the plaintiff, Friendly Physician, P.C., as the assignee of Lloy Welds, had filed a motion for summary judgment in order to recover assigned first-party no-fault benefits from the defendant, GEICO Ins. Co. The issue decided in this case was whether the plaintiff had demonstrated its entitlement to judgment as a matter of law. The holding of the court was that while the plaintiff had shown that the bills were submitted to the defendant and set forth the fact and amount of the loss sustained, the sworn statements submitted by the defendant were sufficient to raise a triable issue of fact as to whether the alleged injuries arose out of an insured incident. Therefore, the court reversed the order granting the plaintiff's motion for summary judgment and denied the motion.

Reported in New York Official Reports at Friendly Physician, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52359(U))

Friendly Physician, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52359(U)) [*1]

Friendly Physician, P.C. v GEICO Ins. Co.

2011 NY Slip Op 52359(U) [34 Misc 3d 132(A)]

Decided on December 21, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-2148 K C.

Friendly Physician, P.C. as Assignee of Lloy Welds, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 4, 2010. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment.

Contrary to defendant’s only contentions on appeal regarding plaintiff’s prima facie showing of its entitlement to judgment as a matter of law, plaintiff demonstrated that the
subject bills were submitted to defendant and that they set forth the fact and the amount of the loss sustained. However, we find that the sworn statements submitted by defendant in opposition to plaintiff’s motion were sufficient to raise a triable issue of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, 11th and 13th Jud Dists 2009]). [*2]Accordingly, the order granting plaintiff’s motion for summary judgment is reversed and plaintiff’s motion is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 21, 2011