Umed Med., P.C. v State Farm Ins. Co. (2007 NY Slip Op 50892(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from so much of an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered December 28, 2005, deemed an appeal from a judgment entered on February 17, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 28, 2005 order insofar as it granted plaintiff partial summary judgment on its third cause of action, awarded plaintiff the principal sum of $5,127.27.

Judgment reversed without costs, order, insofar as it granted plaintiff partial summary judgment on its third cause of action, vacated and that branch of plaintiff’s motion seeking summary judgment on its third cause of action denied.

In this action by a provider to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case of entitlement to summary judgment with respect to its third cause of action as defendant raised no issue in the court below or on appeal with respect thereto. Defendant’s sole issue on this appeal is whether it raised a triable issue of fact by proffering sufficient evidence in admissible form to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident,” in that the automobile accident at issue in said third cause of action was staged (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Contrary to the determination of the court below, we find that defendant’s submission of a [*2]sworn affidavit of its special investigator was sufficient to demonstrate such a “founded belief” notwithstanding the fact that the affidavit contained hearsay allegations (cf. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]; Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51747[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, that branch of plaintiff’s motion which sought summary judgment on its third cause of action should have been denied.

Pesce, P.J., and Weston Patterson, J., concur.

Rios, J., dissents in a separate memorandum:

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

I disagree with the majority and vote to affirm the judgment of the lower court.

The thrust of defendant’s opposition to the motion for summary judgment lies in its claim that it has a founded belief that the underlying event was not an accident but, rather, an intentional act. To support its claim, defendant submits in opposition to plaintiff’s motion, the affidavit of investigator Don McCaslin who maintains that the underlying insurance policy was obtained through the unauthorized use of the identity of Sophia Lowe-Davis. McCaslin avers that Lowe-Davis was the victim of identity theft as
“confirmed by NYPD Detective Reedy.” Despite his representations, no affidavits from either Detective Reedy or Lowe-Davis accompany defendant’s opposition papers, nor is there any explanation as to why they are not tendered (see Alvord & Smith v Muller Constr. Co., 46 NY2d 276 [1978]).

In opposing the motion for summary judgment, it was incumbent upon defendant to present evidence in admissible form to require a trial on material issues. Here, defendant expressed unsubstantiated allegations which, even if believable, are insufficient to defeat a motion for summary judgment (see P. D. J. Corp. v Bansh Props., 23 NY2d 971 [1969]). [*3]
Decision Date: April 27, 2007