LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51072(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered February 3, 2006. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was a triable issue of fact because it possessed a founded belief that the alleged injuries did not arise from a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In the present case, defendant failed to establish such a founded belief. The accident reports and other documents offered by defendant do not constitute evidentiary proof in admissible form and are without probative value, as they were not sworn or supported by an affidavit of someone alleging personal knowledge of the facts included therein or of the preparation of said documents (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, defendant failed to demonstrate the existence of a triable issue of fact.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the sworn and detailed affidavit by the defendant’s Special Investigative Unit investigator established a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). That affidavit, which referenced and was accompanied by police accident reports and other unsworn documents, reveals among other information, that the same vehicle that was involved in this accident was involved in at least two other accidents which occurred within one month of the policyholder first obtaining the underlying insurance policy. In addition, all of these “accidents” were remarkably similar to each other and similar to a series of other accidents that are under investigation. They all involve rear-end impacts, many of the addresses appear to be the same as that used by this insured, and in each loss there was only a single occupant in one vehicle and an operator with three passengers in the other vehicle.

These facts are sufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62, 64-65 [Golia, J., dissenting]).
Decision Date: May 24, 2007