March 19, 2007

New Way Med., P.C. v Kemper Ins. Co. (2007 NY Slip Op 50535(U))

Headnote

The court considered the facts of an action to recover first-party no-fault benefits for services rendered to the plaintiff's assignor. The plaintiff had moved for summary judgment, but the defendant opposed the motion. The lower court denied the plaintiff's motion, leading to the appeal. The main issue decided was whether the plaintiff's motion for summary judgment was properly denied, and the court found that it was, as the defendant raised a triable issue. The holding of the case was that, under the circumstances presented, the plaintiff's motion for summary judgment was properly denied, and the lower court's order was affirmed.

Reported in New York Official Reports at New Way Med., P.C. v Kemper Ins. Co. (2007 NY Slip Op 50535(U))

New Way Med., P.C. v Kemper Ins. Co. (2007 NY Slip Op 50535(U)) [*1]

New Way Med., P.C. v Kemper Ins. Co.

2007 NY Slip Op 50535(U) [15 Misc 3d 127(A)]

Decided on March 19, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1842 K C.

New Way Medical, P.C. a/a/o JUAN ORELLANA, Appellant,
against
Kemper Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiff moved for summary judgment, and defendant opposed. The lower court denied plaintiff’s motion and this appeal ensued.

Under the circumstances presented, we find that plaintiff’s motion was properly denied, as defendant raised a triable issue which was “premised on the fact or founded belief that the alleged injury…[did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 19, 2007