May 22, 2009

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 51026(U))

Headnote

The court considered the fact that the provider in this case had established a prima facie case to recover assigned first-party no-fault benefits. The main issue decided was whether the December 2005 order, deciding a summary judgment motion in a prior case between the parties, should have collateral estoppel effect in the present action. The court held that the provider failed to show that the identical issues were decided in the prior action, and that the defendant met its burden of proving that the loss did not arise out of an insured incident. Therefore, the judgment to dismiss the complaint was affirmed.

Reported in New York Official Reports at Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 51026(U))

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 51026(U)) [*1]

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co.

2009 NY Slip Op 51026(U) [23 Misc 3d 141(A)]

Decided on May 22, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-408 Q C.

Vitality Chiropractic, P.C. a/a/o Nadejda Ushakova, Appellant,
against
State Farm Mutual Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 9, 2006. The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff established its prima facie case. Plaintiff then made a motion in limine to have the court accord the December 2005 order, deciding a summary judgment motion in a prior case between the parties, collateral estoppel effect in the instant action. In the prior action, plaintiff rendered services to a different assignor for injuries he sustained in the same accident as the assignor herein, and the order found that the affidavit of defendant’s investigator was insufficient to support a founded belief that the loss did not arise out of an insured incident. In the case at bar, the Civil Court denied plaintiff’s motion.
Defendant’s sole witness at trial was its investigator, and during her testimony, plaintiff did not object to the admission into evidence of several auto claim service records, the insurance policy, claim forms, and denial of claim forms. The court found in favor of defendant and dismissed the complaint, holding that defendant “established that the assignor in this case was involved in an insurance fraud scheme with the intent to defraud the carrier for medical benefits.” The instant appeal by plaintiff ensued.
In support of its motion, plaintiff failed to show that the identical issues were decided in the prior action, and [*2]are decisive in the present action (see Luscher v Arrua, 21 AD3d 1005 [2005]). Moreover, a review of the record indicates that defendant met its burden of proving that the loss did not arise out of an insured incident. Accordingly, the Civil Court properly awarded judgment dismissing the complaint.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: May 22, 2009