December 20, 2012

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co. (2012 NY Slip Op 52388(U))

https://www.beynensonlaw.com/case-law/new-york-hosp-med-ctr-of-queens-v-utica-mut-ins-co-2012-ny-slip-op52388u/

Court: Appellate Term, Second Department
Decided: December 20, 2012
Citation: 2012 NY Slip Op 52388(U) · 38 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Staged accidents, lack of coverage Trial and evidence
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co., 38 Misc 3d 128(A), 2012 NY Slip Op 52388(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2012)

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.

The insurer established that the assignor's injuries did not arise from an insured incident, and the provider's records raised no triable issue. The insured's affidavit stated that the assignor jumped onto a parked car's hood, got off without incident or injury, and had no further contact with the car. The provider opposed summary judgment with police and hospital records. The police report lacked certification or foundation under CPLR 4518 (c) and contained inadmissible hearsay. The hospital records lacked foundation under CPLR 4518 (a) and (c) and did not rebut the insured's account or establish the insured's involvement. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co. (2012 NY Slip Op 52388(U))

[*1]

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co.

2012 NY Slip Op 52388(U) [38 Misc 3d 128(A)]

Decided on December 20, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MOLIA, J.P., NICOLAI and IANNACCI, JJ
2011-2064 N C.

The New York Hospital Medical Center of Queens as Assignee of VICTOR MORALES, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated June 21, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by its insured who stated that plaintiff’s assignor had jumped on the hood of the insured’s car, while it was parked, and got off of the car without incident or injury. The insured, according to his sworn statement, drove away without further contact with plaintiff’s assignor. Consequently, defendant argued that plaintiff’s assignor’s alleged injuries did not arise out of an insured incident. In opposition to defendant’s cross motion, plaintiff submitted a police accident report and plaintiff’s assignor’s hospital records. According to plaintiff, these records demonstrate that its assignor was injured when defendant’s insured drove his car into plaintiff’s assignor, as reported to the police and [*2]hospital personnel by plaintiff’s assignor. The District Court found that the assignor’s hearsay statements that are contained within the records, in conjunction with the medical information, raised a triable issue of fact as to how plaintiff’s assignor was injured.

The police report offered by plaintiff did not constitute proof in admissible form, as it was not certified pursuant to CPLR 4518 (c) and no foundation establishing its authenticity and accuracy was offered (see Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2009]). In any event, “the statements in the report attributed to the [plaintiff’s assignor] constituted inadmissable hearsay” (id. at 991-992).

The hospital records that plaintiff submitted to the court purport to include a description of the alleged accident as reported to hospital staff by plaintiff’s assignor. Such statements are considered reliable only when they are relevant to diagnosis or treatment (see Williams v Alexander, 309 NY 283, 286 [1955]). Here, the hospital records do not contain any allegations that rebut the allegations contained in defendant’s insured’s sworn statement. Furthermore, plaintiff failed to lay the requisite foundation for the hospital records (see CPLR 4518 [a], [c]). Thus, contrary to the finding of the District Court, even assuming the hospital records were admissible at all, and therefore could be used as proof that plaintiff’s assignor was injured by a motor vehicle, they still did not raise a triable issue of fact as to whether defendant’s insured was involved, thereby triggering defendant’s liability.

Since defendant demonstrated that the injuries in question did not arise out of an insured incident, and plaintiff failed to raise a triable issue of fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 69 AD3d 923 [2010]; Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 20, 2012

Legal questions

A question 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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer proved the injuries did not arise from a covered accident

Held the insured's sworn statement that the assignor merely jumped on his parked car established the injuries did not arise from an insured incident, and the provider's uncertified police report and hospital records raised no issue on the insured vehicle's involvement.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co. (2010 NY Slip Op 00668) FollowedAn insurer's failure to pay or deny a no-fault claim within 30 days does not preclude a defense that the accident was not an insured incident.
Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U)) FollowedThe insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.

Cited by

A label shows how the later decision treated this one.

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2025 NY Slip Op 51164(U)) FollowedThe insurer's hearsay submissions and conflicting accident accounts failed to establish that its insured vehicle was uninvolved.

Similar decisions

Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52303(U))The provider failed to establish admissible proof of services, and the insurer failed to establish that the assignor was ineligible for coverage.
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.
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.
A.B. Chiropractic, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51022(U))The insurer raised a factual issue by supporting a founded belief that the assignor's alleged injuries did not arise from an insured incident.
AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))An untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.