March 5, 2008
Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))
Headnote
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| This opinion is uncorrected and will not be published in the printed Official Reports.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