March 7, 2008

Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))

Headnote

The court considered the evidence presented by both the plaintiff and the defendant in a case involving the recovery of first-party no-fault benefits. The main issue decided was whether the defendant provided sufficient evidence in support of its cross motion for summary judgment to dismiss the plaintiff's complaint on the grounds that the injuries sustained did not arise from an insured incident. The court held that while the defendant demonstrated a "founded belief" that the injuries did not arise from an insured incident, they failed to submit enough evidence in admissible form to establish this as a matter of law. Therefore, neither the plaintiff nor the defendant were entitled to summary judgment, and the judgment was reversed, with the plaintiff's motion for summary judgment denied.

Reported in New York Official Reports at Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))

Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U)) [*1]

Lexington Acupuncture, P.C. v GEICO Ins. Co.

2008 NY Slip Op 50519(U) [19 Misc 3d 128(A)]

Decided on March 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-105 Q C.

Lexington Acupuncture, P.C. as assignee of Daniel Baez, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2006, deemed from a judgment entered December 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,854.30.

Judgment reversed without costs, so much of the order entered September 21, 2006 as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issues raised by defendant are whether it proffered sufficient evidence in support of its cross motion for summary judgment to entitle it to dismissal of plaintiff’s complaint due to the fact that the injuries sustained by plaintiff’s assignor did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) or, in the alternative, whether it proffered sufficient evidence in opposition to plaintiff’s motion for summary judgment to defeat same. Upon a review of the record, we find that while defendant demonstrated that it possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199) so as to defeat plaintiff’s motion, it failed to submit sufficient evidence in admissible form to establish, as a matter of law, “that the alleged injur[ies] do[] not arise out of an insured incident” (id.) so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 7, 2008