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August 16, 2007

Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51611(U))

https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-state-farm-mut-auto-ins-co-2007-ny-slip-op-51611u/

Court
Appellate Term, Second Department
Decided
August 16, 2007
Citation
2007 NY Slip Op 51611(U) · 16 Misc 3d 135(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 5 later decisions (see Cited by)
Issues
Staged accidents, lack of coverage Discovery and procedure
Legal questions
No covered accident (founded belief) (see the maps)
Cite as
Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135(A), 2007 NY Slip Op 51611(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 investigator's affidavit raised a triable coverage issue, and the provider waived its CPLR 2309 (c) objection. The provider obtained summary judgment for assigned no-fault benefits for medical supplies. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Term, Second Department, found that the affidavit demonstrated a founded belief that the alleged injuries did not arise from an insured incident. The provider's objection to the affidavit's form was waived because it was first raised on appeal. The court reversed the judgment, vacated the portion of the order granting the provider summary judgment, and denied that motion.

Reported in New York Official Reports at Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51611(U))

[*1]
Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co.
2007 NY Slip Op 51611(U) [16 Misc 3d 135(A)]
Decided on August 16, 2007
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-804 K C.
Infinity Health Products Ltd. a/a/o Kazimir Sylvestr, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered March 17, 2006, deemed an appeal from a judgment entered April 7, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,961.75.

Judgment reversed without costs, the branch of the March 17, 2006 order which granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff’s motion for summary judgment was granted and defendant’s cross motion for summary judgment was denied. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, [*2]supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment.

We note that plaintiff’s assertion that the affidavit of defendant’s investigator was inadmissible because it did not comply with CPLR 2309 (c) was waived since it was raised for the first time on appeal (see Sam v Town of Rotterdam, 248 AD2d 850
[1998]; Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 9th & 10th Jud Dists]).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007

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: Founded belief shown; the question must be tried

Held the insurer's investigator's affidavit sufficient to show a founded belief that the injuries did not arise from an insured incident, raising a triable issue, and the provider waived its CPLR 2309(c) objection by raising it first on appeal.

  • Appellate DivisionApp Div 13
  • Appellate TermApp Term 161
  • Trial courtsTrial 42
2023, Appellate Division: 1 decision (1 Defense established)2022, Appellate Division: 1 decision (1 Defense established)2016, Appellate Division: 1 decision (1 Insurer's motion fails)2015, Appellate Division: 1 decision (1 Insurer's motion fails)2009, Appellate Division: 1 decision (1 Defense not shown)2007, Appellate Division: 3 decisions (2 Triable issue, 1 Defense not shown)2005, Appellate Division: 2 decisions (2 Defense not shown)2026, Appellate Division: 1 decision (1 Defense not shown)2004, Appellate Division: 2 decisions (2 Defense not shown)2021, Appellate Term: 1 decision (1 Insurer's motion fails)2019, Appellate Term: 3 decisions (2 Defense established, 1 Insurer's motion fails)2018, Appellate Term: 4 decisions (4 Defense established)2017, Appellate Term: 7 decisions (1 Defense established, 2 Triable issue, 3 Insurer's motion fails, 1 Defense not shown)2016, Appellate Term: 1 decision (1 Insurer's motion fails)2015, Appellate Term: 1 decision (1 Defense established)2014, Appellate Term: 1 decision (1 Defense established)2012, Appellate Term: 2 decisions (2 Defense established)2011, Appellate Term: 4 decisions (2 Triable issue, 2 Insurer's motion fails)2010, Appellate Term: 2 decisions (1 Defense established, 1 Triable issue)2009, Appellate Term: 12 decisions (4 Defense established, 5 Triable issue, 3 Defense not shown)2008, Appellate Term: 7 decisions (3 Triable issue, 4 Defense not shown)2007, Appellate Term: 23 decisions (13 Triable issue, 2 Insurer's motion fails, 8 Defense not shown)2006, Appellate Term: 30 decisions (21 Triable issue, 9 Defense not shown)2005, Appellate Term: 37 decisions (1 Defense established, 24 Triable issue, 12 Defense not shown)2004, Appellate Term: 22 decisions (16 Triable issue, 6 Defense not shown)2003, Appellate Term: 1 decision (1 Defense not shown)2025, Appellate Term: 1 decision (1 Insurer's motion fails)2013, Appellate Term: 1 decision (1 Defense established)2023, Appellate Term: 1 decision (1 Triable issue)2023, Trial courts: 2 decisions (2 Insurer's motion fails)2020, Trial courts: 1 decision (1 Insurer's motion fails)2019, Trial courts: 3 decisions (1 Defense established, 1 Triable issue, 1 Defense not shown)2013, Trial courts: 1 decision (1 Triable issue)2011, Trial courts: 2 decisions (2 Defense not shown)2010, Trial courts: 2 decisions (1 Triable issue, 1 Defense not shown)2008, Trial courts: 4 decisions (2 Triable issue, 2 Defense not shown)2007, Trial courts: 2 decisions (2 Triable issue)2006, Trial courts: 7 decisions (2 Defense established, 5 Defense not shown)2005, Trial courts: 7 decisions (1 Defense established, 6 Defense not shown)2004, Trial courts: 4 decisions (4 Defense not shown)2026, Trial courts: 6 decisions (2 Defense established, 3 Triable issue, 1 Insurer's motion fails)2014, Trial courts: 1 decision (1 Defense not shown)This decision
20052010201520202025
Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

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.

Cited by

A label shows how the later decision treated this one.

  • Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U)) FollowedThe insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.
  • J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U)) FollowedThe insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.
  • Mid Atl. Med., P.C. v Electric Ins. Co. (2009 NY Slip Op 52597(U)) FollowedThe provider's challenges to the insurer's affidavit and late-notice denial were waived because they were first raised on appeal.
  • Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U)) FollowedThe provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
  • Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50950(U)) FollowedThe insurer's affidavits and documents established timely mailing of its denial, and the provider waived its objection under CPLR 2309 (c).

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 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 American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.
  • Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))The provider's supporting affidavit failed to establish a business-record foundation for the documents submitted on its summary judgment motion.
  • 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.
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