September 10, 2008
Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-zurich-ins-co-2008-ny-slip-op-51869u/
- Decided
- September 10, 2008
- Citation
- 2008 NY Slip Op 51869(U) · 20 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions (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 Zurich Ins. Co. (2008 NY Slip Op 51869(U))
| Infinity Health Prods., Ltd. v Zurich Ins. Co. |
| 2008 NY Slip Op 51869(U) [20 Misc 3d 145(A)] |
| Decided on September 10, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1622 K C.
against
Zurich Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Diane A. Lebedeff, J.), entered August 27, 2007. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
Order reversed without costs, defendant’s motion for summary judgment dismissing the complaint granted and plaintiff’s cross motion for summary judgment denied.
Plaintiff commenced this action to recover $882.39 in assigned first-party no-fault benefits
for medical supplies provided to its assignor for injuries he sustained in
a motor vehicle accident on October 12, 2004. Defendant moved for summary judgment
dismissing the complaint, arguing that the action was premature since it had yet to receive claims
pertaining to such an accident. Plaintiff cross-moved for summary judgment. The court below
granted plaintiff’s cross motion and, implicitly, denied defendant’s motion. The instant appeal by
defendant ensued.
Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The affidavit of plaintiff’s billing manager states that plaintiff’s assignor received medical supplies for injuries he sustained in an accident on October 12, 2004, which date corresponds to the facts alleged in the complaint. The annexed claim forms and denials, however, refer to an accident occurring on September 29, 2004. Consequently, plaintiff’s cross motion for summary judgment should have been denied. Defendant, however, established itsprima facie entitlement to summary judgment dismissing the complaint based upon the fact [*2]that it did not receive claims from plaintiff regarding an accident on October 12, 2004 involving plaintiff’s assignor. Inasmuch as plaintiff failed to rebut defendant’s showing, defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider failed to prove submission of claim forms for the accident sued on because its affidavit and complaint referred to one accident date while the annexed claim forms and denials referred to another.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Cited in this decision
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Similar decisions
- 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 Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 52396(U))The provider's action was premature because timely verification requests remained unanswered.
- 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 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.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51870(U))The provider's business-record foundation and the insurer's proof of timely mailing were insufficient to support their summary judgment motions.