November 9, 2018

Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))

https://www.beynensonlaw.com/case-law/jamaica-wellness-med-p-c-v-hereford-ins-co-2018-ny-slip-op51586u/

Court: Appellate Term, Second Department
Decided: November 9, 2018
Citation: 2018 NY Slip Op 51586(U) · 61 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 61 Misc 3d 138(A), 2018 NY Slip Op 51586(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 insured's EUO testimony established prima facie that the alleged injury did not arise from an insured incident. The insured testified that three passengers repeatedly requested money and, after the insured refused, police stopped the vehicle and reported the passengers' claim of a hit-and-run collision. The insured denied that any accident occurred while the passengers were in the vehicle. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., that testimony supported the insurer's lack-of-coverage defense, and the provider raised no triable factual issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.

Reported in New York Official Reports at Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))

[*1]

Jamaica Wellness Med., P.C. v Hereford Ins. Co.

2018 NY Slip Op 51586(U) [61 Misc 3d 138(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2655 K C

Jamaica Wellness Medical, P.C., as Assignee of Nelson Shaquan, Appellant,
against
Hereford Insurance Company, Respondent.

Law Offices of Melissa Betancourt (Melissa Betancourt of counsel), for appellant. Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 25, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident on February 13, 2013, and denied plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018

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 proved the injuries did not arise from a covered accident

Held the insured driver's EUO testimony that his vehicle had not been in any accident while the passengers were aboard showed the injuries did not arise from an insured incident, and the provider raised no triable issue.

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

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

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

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U)) FollowedThe insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.
Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co. (2009 NY Slip Op 52379(U)) FollowedThe insured's unrebutted affidavit established that the insured vehicle was not involved in the accident allegedly injuring the assignor.

Similar decisions

Jamaica Dedicated Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51493(U))The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied.
City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript.
Jamaica Wellness Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 51637(U))The self-insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed on mailing and nonappearance proof.
Compas Med., P.C. v Hereford Ins. Co. (2017 NY Slip Op 51083(U))The insurer's record-search affidavit established that no relevant policy was in effect on the accident date, and the provider raised no factual issue.
Jamaica Dedicated Medical Care. P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50605(U))The insurer failed to establish fraudulent policy procurement because the insured's residence remained disputed and its report relied on hearsay.