March 5, 2007

Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U))

Headnote

The relevant facts considered by the court included a motion for summary judgment by the plaintiff to recover assigned first-party no-fault benefits, and a cross-motion for summary judgment by the defendant. The main issue decided was whether the defendant had properly established that the 30-day prescribed period in which to deny the claims was tolled, and whether the alleged injuries arose out of a covered incident. The holding of the case was that the court affirmed the order without costs, as the defendant had failed to establish the mailing of requests for examinations under oath and had failed to assert facts with sufficient particularity to establish a founded belief that the injuries did not arise out of an insured incident. Therefore, the court properly granted the plaintiff's motion for summary judgment and denied the defendant's cross motion.

Reported in New York Official Reports at Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U))

Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U)) [*1]

Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2007 NY Slip Op 50394(U) [14 Misc 3d 144(A)]

Decided on March 5, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1184 K C.

Wei Wei Acupuncture, P.C. a/a/o Carlixta Batista, Respondent,
against
State Farm Mutual Automobile Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered May 25, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $2,805 and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action 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, as defendant raised no issue in the court below or on appeal with respect thereto.

In opposition to the motion, defendant’s attorney made the conclusory allegation, without personal knowledge of the facts, that defendant had sent several requests for examinations under oath to the insured and that the insured failed to appear. Since defendant failed to properly establish said mailings (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish that the 30-day prescribed period in which to deny the claims was tolled (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant further opposed plaintiff’s motion asserting that the alleged injuries do not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). However, the affidavit by an investigator for the special investigation unit of defendant failed to allege facts either upon personal knowledge or based upon evidence in admissible form with sufficient particularity to establish a “founded belief that the alleged [*2]injur[ies] do[ ] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co, 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 5, 2007