June 30, 2009

West Tremont Med. Diagnostics P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51325(U))

Headnote

The court considered the defendant's submission in support of its staged accident defense, as well as its reliance on a policy exclusion defense. The main issue decided was whether the defendant's submission was sufficient to establish a "founded belief that the alleged injury did not arise out of an insured incident" and whether the policy exclusion defense was precluded due to the defendant's failure to timely deny the claims. The holding of the case was that the defendant's submission was insufficient to establish a "founded belief" and that any policy exclusion defense was precluded due to the defendant's failure to timely deny the claims. The appellate court affirmed the order of the Civil Court of the City of New York, Bronx County which granted the plaintiff's motion for summary judgment.

Reported in New York Official Reports at West Tremont Med. Diagnostics P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51325(U))

West Tremont Med. Diagnostics P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51325(U)) [*1]

West Tremont Med. Diagnostics P.C. v Utica Mut. Ins. Co.

2009 NY Slip Op 51325(U) [24 Misc 3d 129(A)]

Decided on June 30, 2009

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570034/09.,

West Tremont Medical Diagnostics P.C. a/a/o Jesus Rodriguez, Plaintiff-Respondent,
against
Utica Mutual Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 9, 2007, which granted plaintiff’s motion for summary judgment.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered February 9, 2007, affirmed, without costs.

In this action to recover first party no-fault benefits, defendant’s submission in support of its staged accident defense was insufficient to establish a “founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 2009 NY Slip Op 50493[U] [2009]). To the extent that defendant purports to rely upon a policy exclusion, any such defense is precluded in view of defendant’s failure to timely deny the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009