February 29, 2008

Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U))

https://www.beynensonlaw.com/case-law/impulse-chiropractic-p-c-v-new-york-cent-mut-fire-ins-co-2008-ny-slip-op50498u/

Court: Appellate Term, Second Department
Decided: February 29, 2008
Citation: 2008 NY Slip Op 50498(U) · 19 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127(A), 2008 NY Slip Op 50498(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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.

The insurer's Maryland affidavit lacked a certificate of conformity, and the provider preserved its admissibility objection. The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment. Without a certificate under CPLR 2309 (c), the technical consultant's affidavit and accident analysis did not furnish competent admissible evidence of a founded belief that the injuries arose outside an insured incident. The court declined to review the unchallenged determination that the provider established its prima facie case. The insurer's constitutional challenge to CPLR 2309 (c) was unpreserved and also unreviewable because it failed to notify the Attorney General as required by Executive Law § 71 and CPLR 1012.

Reported in New York Official Reports at Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U))

[*1]

Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 50498(U) [19 Misc 3d 127(A)]

Decided on February 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-2032 Q C

Impulse Chiropractic, P.C. a/a/o Devi Matiashvili, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cynthia Kern, J.), dated July 14, 2006, deemed from a judgment entered August 16, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,133.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted and the instant appeal by defendant ensued.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report and an affidavit of the technical consultant who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries allegedly sustained by plaintiff’s assignor arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit proffered by defendant was executed in Maryland, and did not comply with CPLR 2309 (c), in that it was not accompanied by a certificate of conformity. Since this defect was duly objected to by plaintiff in the court below, defendant failed to introduce competent evidence in admissible form establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & [*2]11th Jud Dists 2006]). Accordingly, plaintiff’s motion
for summary judgment was properly granted, as defendant failed to raise a triable issue of fact.

Defendant’s constitutional challenge to CPLR 2309 (c) is unpreserved for appellate review since this argument was not made in the court below (see Matter of Larry B., 39 AD3d 399 [2007]; Matter of Coleman v Thomas, 295 AD2d 508 [2002]; Catholic Family Ctr. v Doe, 147 AD2d 977 [1989]; Emmer v Emmer, 69 AD2d 850 [1979]). Moreover, said challenge is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301
AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 29, 2008

Legal questions

A question 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.

No covered accident (founded belief)

Open the full map

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 out-of-state accident-analysis consultant's affidavit, lacking a CPLR 2309(c) certificate of conformity over the provider's objection, was inadmissible, so the insurer failed to show a founded belief and the provider's summary judgment was affirmed.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 216 decisions on this question in the Second Department courts and the Court of Appeals, 73 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51981(U)) FollowedThe insurer's accident-reconstruction affidavit was inadmissible because it did not comply with CPLR 2309 (c).
A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U)) Contrasted (cf., but see)The insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.

Cited by

A label shows how the later decision treated this one.

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U)) FollowedThe insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected.
Crossbridge Diagnostic Radiology v Encompass Ins. (2009 NY Slip Op 51415(U)) FollowedThe insurer failed to prove exhausted coverage because its out-of-state affidavit did not comply with CPLR 2309 (c).

Similar decisions

Impulse Chiropractic, P.C. v Countrywide Ins. (2007 NY Slip Op 52293(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
Impulse Chiropractic, P.C. v Travelers Ins. Co. (2006 NY Slip Op 52371(U))The provider failed to establish submission of the claim form because its affidavit and the insurer's acknowledgment were insufficient.
Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))The provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims.
Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))The provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50289(U))The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation.