March 5, 2008
Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))
https://www.beynensonlaw.com/case-law/mani-med-p-c-v-ny-cent-mut-ins-co-2008-ny-slip-op-50508u/
- Decided
- March 5, 2008
- Citation
- 2008 NY Slip Op 50508(U) · 19 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 4 later decisions (see Cited by)
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 Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))
| Mani Med., P.C. v NY Cent. Mut. Ins. Co. |
| 2008 NY Slip Op 50508(U) [19 Misc 3d 128(A)] |
| Decided on March 5, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2007-338 Q C.
against
NY Central Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered November 16, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. Defendant opposed plaintiff’s motion, asserting that the injuries allegedly
sustained by plaintiff’s assignor were not causally related to the accident. The court denied
plaintiff’s motion for summary judgment holding that
while plaintiff proved its prima facie entitlement to summary judgment, defendant raised a
triable issue of fact. This appeal by plaintiff ensued.
Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, accompanied by the sworn affidavit of the consultant who prepared said report, was sufficient to demonstrate that the defense was based on a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. [*2]Hosp., 90 NY2d at 199; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists 2005]; cf. Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97 [App Term, 1st Dept 2007]).
Plaintiff’s argument, that the consultant’s sworn affidavit was inadmissible, because it did not comply with CPLR 2309 (c), is raised for the first time on appeal, and therefore waived (see Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), the lower court properly denied plaintiff’s motion for summary judgment.
In light of the foregoing, we do not reach the parties’ remaining contentions.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 5, 2008
Legal questions (2)
Questions 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 sworn accident reconstruction report showed a founded belief that the injuries were not causally related to the accident, raising a triable issue of coverage.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established its prima facie case by proof that it submitted the claim forms and payment was overdue, shifting the burden to the insurer.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50607(U)) FollowedThe insurer's accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial.
- Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27427) Contrasted (cf., but see)The insurer's generic low-impact study failed to raise a triable issue that the assignor's injuries were unrelated to the accident.
- Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51611(U)) FollowedThe insurer's investigator's affidavit raised a triable coverage issue, and the provider waived its CPLR 2309 (c) objection.
Cited by
A label shows how the later decision treated this one.
- J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U)) FollowedThe insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.
- Mid Atl. Med., P.C. v Electric Ins. Co. (2009 NY Slip Op 52597(U)) FollowedThe provider's challenges to the insurer's affidavit and late-notice denial were waived because they were first raised on appeal.
- Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U)) FollowedThe provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
- Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50950(U)) FollowedThe insurer's affidavits and documents established timely mailing of its denial, and the provider waived its objection under CPLR 2309 (c).
- Quality Health Prods., Inc. v Auto One Ins. Co. (2008 NY Slip Op 51530(U))The insurer failed to establish continued EUO tolling after receiving verification, rendering its denial untimely and precluding fraudulent billing.
- Boro Med. Supplies, Inc. v Country Wide Ins. Co. (2008 NY Slip Op 52698(U))The insurer's unsigned affidavit failed to prove a timely denial, precluding its defense that the provider submitted the claim late.
Similar decisions
- A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident.
- A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.
- A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U))The insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.
- A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 52300(U))The insurer's investigator raised a triable issue as to whether the assignor's injuries arose from an insured incident.
- Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U))The insurer's investigator failed to establish a fact or founded belief that the assignor's injuries did not arise from an insured incident.