March 7, 2008
Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))
https://www.beynensonlaw.com/case-law/lexington-acupuncture-p-c-v-geico-ins-co-2008-ny-slip-op50519u/
- Decided
- March 7, 2008
- Citation
- 2008 NY Slip Op 50519(U) · 19 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (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 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) [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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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
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: Founded belief shown; the question must be tried
Held the insurer showed a founded belief that the injuries did not arise from an insured incident, enough to defeat the provider's motion, but its admissible evidence did not establish that as a matter of law, so neither side won summary judgment.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
Cited by
A label shows how the later decision treated this one.
- Parisien v Esurance (2023 NY Slip Op 51235(U)) FollowedThe insurer's founded belief that the collision was staged did not establish its coverage defense through sufficient admissible evidence.
Similar decisions
- Downtown Acupuncture, P.C. v Geico Gen. Ins. Co. (2007 NY Slip Op 50660(U))The provider's president failed to establish a business-records foundation, defeating the provider's prima facie summary judgment showing.
- Ying E. Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51805(U))The insurer established timely denials and proper use of the chiropractic acupuncture fee schedule, defeating the provider's summary judgment.
- Chi P&L Acupuncture, P.C. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50768(U))The insurer failed to establish timely denials after the provider missed both the initial and follow-up EUOs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment dismissing the assigned no-fault claims.
- Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51879(U))The provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment.
- A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2005 NYSlipOp 50650(U))The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition.