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 (Genine D. Edwards, J.), entered March 27, 2008. The order denied defendant’s motion to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer. The Civil Court denied the motion on the ground that defendant had failed to demonstrate both a reasonable excuse for the default as well as a meritorious defense. This appeal by defendant ensued.

Defendant’s contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant’s failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to “submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel’s affirmation in support of the motion that his office failed to timely process the summons and complaint “due to clerical inadvertence,” and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009

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 (Margaret A. Pui Yee Chan, J.), entered March 25, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant’s claims representative failed to demonstrate defendant’s prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: May 28, 2009

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 (Lila Gold, J.), entered March 13, 2008. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that the affidavit plaintiff submitted in support of the motion was insufficient to lay a foundation for the admission, as business records, of the documents annexed to its moving papers. The court granted defendant’s cross motion for summary judgment dismissing the complaint, holding that defendant established the lack of medical necessity for the supplies provided, and noting that “[p]laintiff did not file any opposition to rebut defendant’s evidence.” As limited by its brief, plaintiff appeals from so much of the order as denied its motion for summary judgment, arguing that its motion papers demonstrated a prima facie entitlement to summary judgment.

Inasmuch as plaintiff does not offer any argument as to why this court should reverse the portion of the order which granted defendant’s cross motion for summary judgment, we need not reach the only issue raised by plaintiff, i.e., whether plaintiff established its prima facie entitlement to summary judgment, since the ultimate outcome of the case would, in any event, [*2]not be altered.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009

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, Queens County (Diane A. Lebedeff, J.), entered December 20, 2007. The order denied defendant’s motion to vacate the notice of trial and certificate of readiness.

Order reversed without costs and defendant’s motion to vacate the notice of trial and certificate of readiness granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in September 2005, was accompanied by notices to take deposition upon oral examination and various other discovery demands. After plaintiff served a notice of trial and certificate of readiness in October 2007, defendant moved
to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s motion on the ground of laches due to the passage of time between the service of defendant’s discovery demands and the date on which plaintiff served its notice of trial. This appeal by defendant ensued.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; First Aid Occupational [*2]Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, or complied with the other discovery demands, the notice of trial and certificate of readiness should be vacated (see Great Wall Acupuncture, P.C., 21 Misc 3d at 47).

We further note that the doctrine of laches does not warrant denial of defendant’s motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 27, 2009

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 (Margaret A. Pui Yee Chan, J.), entered March 25, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant’s claims representative failed to demonstrate defendant’s prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In any event, as argued by plaintiff in the Civil Court and on appeal, the affirmed peer review reports defendant submitted in support of its motion for summary judgment indicate that [*2]the “signature” upon each report appears to be identical, thereby raising an issue of fact as to whether the purported signatures were in compliance with CPLR 2106 (see General Construction Law § 46; Mani Med., P.C. v Eveready Ins. Co., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U] [App Term, 2d & 11th Jud Dists 2008]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 702 [Sup Ct, NY County 1965]). Such issue of fact may not be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U]). Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009

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 (Dolores L. Waltrous, J.), entered October 9, 2007, deemed from a judgment of the same court entered January 3, 2008 (CPLR 5520 [c]). The judgment, after a nonjury trial, entered pursuant to the October 9, 2007 order granting defendant’s motion pursuant to CPLR 4401 to dismiss plaintiff’s complaint for failure to prove a prima facie case, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to admit into evidence the claim forms at issue and the assignment of benefits, as well as the denial of claim forms issued by defendant. After defendant’s objection to the admission of said documents was sustained, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and defendant’s affidavit in opposition to plaintiff’s prior motion for summary judgment, which motion was withdrawn, were sufficient to establish plaintiff’s prima facie case. The court similarly sustained defendant’s objection to the admission of the foregoing documents. After plaintiff rested, the court granted defendant’s motion pursuant to CPLR 4401 for a directed verdict dismissing the complaint for failure to prove a prima facie case. The instant appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by [*2]introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009

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, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 19, 2005, deemed from a judgment of the same court entered April 9, 2008 (see CPLR 5512 [a]). The judgment, entered pursuant to the December 19, 2005 order granting defendant’s cross motion to strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to comply with a so-ordered stipulation, dismissed the complaint.

Judgment reversed without costs, so much of the order entered December 19, 2005 as granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 vacated and defendant’s cross motion denied.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a “so-ordered” stipulation in November 2003, which, insofar as is relevant, states:
“Plaintiff . . . will appear for examination before trial (EBT) on or before 60 (sixty) days from today’s date. January 16, 2004.
In the event that plaintiff fails to appear for said examination or fails to produce someone with personal knowledge as to the medical necessity of the services provided (if so required) plaintiff will be precluded from offering evidence at trial.” [*2]
Thereafter, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved, pursuant to CPLR 3126, for an order striking the complaint and dismissing the action with prejudice due to plaintiff’s failure to appear for an EBT on or before January 16, 2004. In opposition to defendant’s cross motion, plaintiff argued that defendant’s cross motion was untimely and that defendant failed to establish that plaintiff breached the so-ordered stipulation because defendant did not demonstrate that the EBT was ever scheduled. The Civil Court granted defendant’s cross motion, dismissed the action, and denied plaintiff’s motion as moot. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion. A judgment dismissing the action was subsequently entered, from which we deem the appeal (see CPLR 5512 [a]).

While defendant’s cross motion was served 16 days later than the date the court fixed for service of said cross motion, it was served more than 4 months before the motion and cross motion were returnable and plaintiff submitted papers in opposition to the cross motion. Consequently, the Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion since plaintiff did not demonstrate that it suffered any prejudice as a result of defendant’s delay (see e.g. Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).

In the case at bar, the so-ordered stipulation did not schedule plaintiff’s EBT for January 16, 2004. Rather, it directed plaintiff to appear for an EBT on or before January 16, 2004. Defendant, however, did not show that plaintiff failed to comply with the stipulation since defendant failed to establish that an EBT of plaintiff was scheduled for January 16, 2004, or any other date, for which plaintiff failed to appear. Consequently, defendant’s cross motion should have been denied. Accordingly, the judgment is reversed, and defendant’s cross motion to strike the complaint is denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

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

In the first instance, it should be noted that the stipulation in question was not written in a vacuum. It was entered into by both parties, who were represented by counsel, and with the approval of the Civil Court only after plaintiff had failed to appear for a deposition on at least two prior separate occasions.

This stipulation between the parties was not only entered into with the approval of the Civil Court, but was converted into a judicial fiat upon being so ordered” by that court. It is of no less merit than any other order that was drafted and signed by a judge without any input from the parties. This so-ordered” stipulation had the full force and effect of a conditional order of preclusion (see State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]). Consequently, plaintiff’s failure to comply should result in a final order of preclusion and therefore dismissal. It is important, at this juncture, to understand that defendant was presumptively entitled to a final order of preclusion at the time this stipulation was entered into. [*3]Plaintiff had already failed to appear on two different occasions to submit to a deposition. It was therefore only as a result of this so-ordered” stipulation that the court agreed to issue a conditional order of preclusion. The condition fell solely upon the plaintiff to take some action to avoid a final preclusion.

Despite this clear mandate, the majority finds that it is defendant’s obligation to establish more than the simple fact that the final date had passed and plaintiff failed to appear for a deposition, a proposition equivalent to the requirement that a plaintiff in a no-fault case need only establish that a claim was filed and remains unpaid after 30 days.

Had this plaintiff responded by asserting that it had contacted defendant in a good faith attempt to comply but was ignored or rebuffed, then defendant could not be shielded behind this conditional order of preclusion. That was not done herein, nor did plaintiff deem it necessary to inform the court that it was unable to comply with the court’s order due to the inaction of defendant. Instead, when faced with a conditional order of preclusion, plaintiff chose to do nothing at all. More than a year later, plaintiff moved for summary judgment without ever bothering to affirmatively address its violation of an existing court order.

Plaintiff’s counsel’s lackadaisical approach completely discounts his client’s failure to comply with the Civil Court’s order. Plaintiff’s counsel states that the only notation in his file is that there is no notice whatsoever from defense counsel looking for the fruits of their ebt motion victory from back in the fall of 2003.” This is indeed a rather strange notation to be contained in a file. Counsel then strikes a conciliatory note to his adversary while being dismissive of the court and its orders. He states, I respectfully submit that both of the law offices of the sides now before this court are simply too high volume, too busy, and employ too many people, to permit for the assertion of no confirmation to a phone call’ be held as violating a court order.”

If that be so, then counsel should be aware of his ethical obligation to accept only those cases for which his office is capable of providing adequate representation. In any event, I find that plaintiff’s total failure to do anything to comply with the so-ordered” stipulation is what constitutes a violation of the clear intent of that stipulation and mandates preclusion in compliance with the Civil Court’s order.
Decision Date: May 22, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

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

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, Queens County (Diane A. Lebedeff, J.), entered October 24, 2007, deemed from a judgment of the same court entered December 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,469.34.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that the time in which it had to pay or deny the claims had been tolled due to plaintiff’s assignor’s failure to appear at scheduled examinations under oath (EUOs) and that no coverage existed for the intentional staged loss. The Civil Court granted plaintiff’s motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In order for defendant to raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were [*2]timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant was not precluded from asserting the defense that the alleged injuries do not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon our review of the record, the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Golia and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.

I concur with the determination of the majority that defendant failed to establish that its denial of claim forms were timely and, thus, that it was not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an examination under oath. However, defendant was not precluded from asserting the defense that
the alleged injuries do not arise out of an insured incident (see Central Gen.
Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and I find that the documents submitted in opposition to plaintiff’s motion were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do not arise out of an insured incident” (Central Gen. Hosp. at 199). Thus, the judgment should be affirmed.
Decision Date: May 22, 2009

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, Queens County (Diane A. Lebedeff, J.), entered October 24, 2007, deemed from a judgment of the same court entered December 9, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,218.13.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that it possessed a founded belief that the injuries allegedly sustained by plaintiff’s assignor did not arise out of an insured incident. The Civil Court granted
plaintiff’s motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The sole issued raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of [*2]transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Golia and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.

I find that the documents submitted in opposition to plaintiff’s motion were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on 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]). Thus, the judgment should be affirmed.
Decision Date: May 22, 2009