November 30, 2018

Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U))

https://www.beynensonlaw.com/case-law/performance-plus-med-p-c-v-american-tr-ins-co-2018-ny-slip-op-51771u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51771(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues

Cite as

Performance Plus Med., P.C. v American Tr. Ins. Co., 2018 NY Slip Op 51771(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's cross motion for summary judgment was granted on its defense that it had issued no policy covering the loss. The Appellate Term, Second Department, affirmed the denial of the provider's motion and dismissal of its assigned no-fault claims, stating only that the insurer's proof sufficiently demonstrated the absence of a policy covering the loss and citing prior decisions.

Reported in New York Official Reports at Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U))

[*1]

Performance Plus Med., P.C. v American Tr. Ins. Co.

2018 NY Slip Op 51771(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-985 Q C

Performance Plus Medical, P.C., as Assignee of Augustine, Gregory, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 27, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the subject loss.

Contrary to plaintiff’s argument as to defendant’s cross motion, the proof submitted by defendant was sufficient to demonstrate that it had not issued a policy covering the subject loss (see e.g. New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

Cited in this decision

New Way Med. Supply Corp. v Dollar Rent A Car (2015 NY Slip Op 51794(U))The self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.

Similar decisions

Performance Plus Med., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 50632(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Performance Plus Med., P.C. v Nationwide Ins. (2016 NY Slip Op 51538(U))The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal.
Performance Plus Med., P.C. v MVAIC (2017 NY Slip Op 50761(U))MVAIC's payment log and claims representative's affidavit supported dismissal based on exhaustion of the applicable no-fault benefits.
Performance Plus Med., P.C. v Kemper Ins. Co. (2015 NY Slip Op 51777(U))A party may not appeal from an order entered on its own default under CPLR 5511.
Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51545(U))The insurer's cross motion to dismiss the first through fifth causes of action on summary judgment for outstanding verification was denied on appeal.