Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 50493(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 11, 2007, deemed from a judgment of the same court entered December 13, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 11, 2007 order denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $612.69.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that the alleged injuries did not arise from an insured incident and that the assignor failed to comply with a condition precedent to coverage. The Civil Court granted plaintiff’s motion, holding that defendant did not plead fraud with the requisite particularity and that it did not establish a founded belief that the accident at issue was intentional. The instant appeal ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In its answer, defendant asserted, as an affirmative defense, that “the accident that is alleged in plaintiff’s complaint was not an accident, but a staged, intentional act, for which there is no insurance coverage.” We need not determine whether this affirmative defense, which has been treated as a lack of coverage defense (see Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), is, for the purpose of CPLR 3016 (b), based upon fraud, such that the rule’s pleading requirements are triggered, since, in any event, the defense was stated with particularity. To the extent that defendant’s [*2]conclusory allegations of “illegal and/or fraudulent conduct,” and “material misrepresentations [made] in the presentation of the claim,” may have applied to circumstances other than its staged accident defense, defendant failed to meet the pleading requirements of CPLR 3016 (b) or to raise such defenses in opposition to plaintiff’s motion for summary judgment (see First Trust Natl. Assn. v DeLuca, 284 AD2d 494 [2001]).

In view of the foregoing, in order to successfully oppose plaintiff’s motion, defendant was required to establish “the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit submitted by defendant’s investigator, the testimony given by plaintiff’s assignor and the driver during their examinations under oath, and the unsworn statement of the adverse driver submitted by defendant were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp., 90 NY2d 195).

Defendant argues that plaintiff’s assignor failed to provide his personal income tax returns, which defendant claims to have requested in order to substantiate the assignor’s alleged lost wages claim, and thus failed to comply with a condition precedent to coverage. We need not determine whether plaintiff’s assignor failed to comply with a condition precedent since, in light of the “confidential and private nature” of an individual’s income tax returns (see Walter Karl, Inc. v Wood, 161 AD2d 704 [1990]), which contain information far broader than that sought by defendant, defendant failed to make a sufficient showing of special circumstances to warrant their production (see Dore v Allstate Indem. Co., 264 AD2d 804 [1999]), especially given the fact that the information sought could have been obtained through other, more focused, means.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 2009