February 14, 2011
Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-american-tr-ins-co-2011-ny-slip-op50195u/
- Decided
- February 14, 2011
- Citation
- 2011 NY Slip Op 50195(U) · 30 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
- Legal questions
- No covered accident (founded belief) (see the maps)
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 Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))
| Infinity Health Prods., Ltd. v American Tr. Ins. Co. |
| 2011 NY Slip Op 50195(U) [30 Misc 3d 137(A)] |
| Decided on February 14, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-2328 K C.
against
American Transit Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. Defendant opposed the motion and cross-moved for summary judgment
dismissing the complaint, arguing that there was a lack of
coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise
out of an insured incident. The Civil Court denied both plaintiff’s motion and defendant’s
cross motion, finding that triable issues of fact existed. Defendant appeals from so much of the
order as denied its cross motion for summary judgment.
Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator’s affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that 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]) so as to warrant the granting of summary judgment dismissing [*2]the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 14, 2011
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.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open
Affirmed denial of the insurer's cross motion because the police accident report was inadmissible and the investigator's affidavit relied on it, so the proof did not establish that the injuries did not arise from an insured incident.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51072(U)) FollowedThe insurer failed to raise a triable coverage issue because its accident reports and other documents lacked admissible support.
- A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U)) FollowedThe insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal.
Cited by
A label shows how the later decision treated this one.
- Tam Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 50402(U)) FollowedThe insurer failed to establish a timely denial preserving policy-procurement fraud or prove that the injuries arose outside an insured incident.
- Premier Anesthesia v Avis Budget Car Rental, LLC (2022 NY Slip Op 50170(U)) FollowedThe insurer failed to establish that it insured neither vehicle involved in the collision because its coverage proof was insufficient.
- Ultimate Massage Therapy, P.C. v Utica Mut. Ins. Co. (2020 NY Slip Op 51613(U)) FollowedThe Workers' Compensation Board has primary jurisdiction to determine whether the Workers' Compensation Law applies.
- Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.
- Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
- Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal.
Similar decisions
- Infinity Health Prods., Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51612(U))The insurer's investigator's affidavit raised a triable issue as to whether the assignor's injuries arose from an insured incident.
- Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51611(U))The insurer's investigator's affidavit raised a triable coverage issue, and the provider waived its CPLR 2309 (c) objection.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue.
- Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))The insurer established that it had received no claims for the accident alleged in the complaint, and the provider failed to rebut that showing.
- Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 50774(U))The provider's action was premature because it failed to respond to timely verification requests and follow-up requests.