February 27, 2008

Medical Care G.M., P.C. v GEICO Ins. (2008 NY Slip Op 50379(U))

Headnote

The court considered an action by two medical providers to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the insurance company proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries sustained by the providers' assignor arose from an insured incident. The court found that the insurance company failed to provide enough evidence to show that it possessed a "founded belief that the alleged injuries did not arise out of an insured incident". Therefore, the court granted the providers' motion for summary judgment and remanded the case for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a). The holding of the case was in favor of the medical providers, granting their motion for summary judgment and remanding for further proceedings.

Reported in New York Official Reports at Medical Care G.M., P.C. v GEICO Ins. (2008 NY Slip Op 50379(U))

Medical Care G.M., P.C. v GEICO Ins. (2008 NY Slip Op 50379(U)) [*1]

Medical Care G.M., P.C. v GEICO Ins.

2008 NY Slip Op 50379(U) [18 Misc 3d 140(A)]

Decided on February 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2005-1827 N C.

Medical Care G.M., P.C. and J.B. Psychological Services, P.C. a/a/o Nestor Valentin, Appellants,
against
GEICO Insurance, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated August 30, 2005. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by two providers to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiffs’ assignor allegedly sustained, arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that defendant failed to proffer sufficient evidence in admissible form to demonstrate that it possessed a “founded belief that the alleged injur[ies] do not arise out of an insured incident” (id. at 199; Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; A.B. Med. Servs. PLLC v State Farm Auto Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, plaintiffs’ motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur. [*2]
Decision Date: February 27, 2008