July 28, 2014

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))

Headnote

The main issue in this case was whether the defendant had issued an insurance policy covering the accident in question. Plaintiff, a provider seeking to recover assigned first-party no-fault benefits, moved for summary judgment, while the defendant cross-moved for summary judgment dismissing the complaint. The court considered the affidavit from the defendant's no-fault examiner, which sufficiently established the defendant's lack of coverage defense. Despite the plaintiff's argument that the defendant was required to describe the steps taken to search its records, the court held that the defendant had demonstrated that it was not the carrier which covered the accident in question. Therefore, the court affirmed the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U)) [*1]

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co.

2014 NY Slip Op 51240(U) [44 Misc 3d 136(A)]

Decided on July 28, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-2245 Q C

Delta Diagnostic Radiology, P.C. as Assignee of KAVEN CELESTIN, Appellant, July 28, 2014
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion, defendant submitted an affidavit from its no-fault examiner which sufficiently established defendant’s lack of coverage defense (see Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Despite plaintiff’s contention to the contrary, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Astoria Quality Med. Supply, 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U]; Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]). Consequently, defendant demonstrated that it was not the carrier which covered the accident in question (see also Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2014]) and, thus, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 28, 2014