December 1, 2009
Excel Radiology Servs., P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52444(U))
https://www.beynensonlaw.com/case-law/excel-radiology-servs-p-c-v-clarendon-natl-ins-co-2009-ny-slip-op52444u/
- Decided
- December 1, 2009
- Citation
- 2009 NY Slip Op 52444(U) · 25 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Excel Radiology Servs., P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52444(U))
| Excel Radiology Servs., P.C. v Clarendon Natl. Ins. Co. |
| 2009 NY Slip Op 52444(U) [25 Misc 3d 140(A)] |
| Decided on December 1, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1496 Q C.
against
Clarendon National Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered June 25, 2008, deemed from a judgment of the same court entered July 30, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.
ORDERED that the judgment is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
Contrary to defendant’s contention on appeal, the affirmations submitted by plaintiff’s president, a physician, in support of the motion were sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
On appeal, defendant characterizes its defense as one based upon fraud and relies solely on
A.B. Med. Servs. v State Farm Mut.
Auto. Ins. Co. (3 Misc 3d 130[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th
Jud Dists 2004]), in which the Appellate Term for the Ninth and Tenth Judicial Districts held
that the insurer “establish[ed] the existence of a triable issue of fact as to whether there was a
lack of coverage because the alleged injuries did not arise from an insured incident (see
Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).” In the case at
bar, defendant has not alleged that no motor vehicle accident occurred or [*2]that the accident was staged. Rather, defendant contends that it
raised a triable issue as to whether the assignor’s daughter was in the car at the time of the
accident. However, contrary to defendant’s contention, the assignor’s alleged misrepresentation of
the presence of her daughter in the car is irrelevant to the question of whether the assignor’s
injuries arose from an insured incident. Accordingly, as defendant failed to demonstrate the
existence of a triable issue of fact in opposition to plaintiff’s motion for summary judgment, the
judgment is affirmed.Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the affirmations of the provider's president were sufficient under CPLR 4518 to support its prima facie case, rejecting the insurer's challenge.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held the assignor's alleged misrepresentation that her daughter was in the car was irrelevant to whether her injuries arose from an insured incident, as no staged or nonexistent accident was alleged, so no triable issue arose.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- A.B. Med. Servs. Pllc v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50575(U)) DistinguishedThe insurer's investigator raised a triable issue of coverage as to whether the alleged injuries arose from an insured incident.
Similar decisions
- Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
- Excellassist Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52071(U))The insurer's motion for summary judgment dismissing the complaint for lack of medical necessity was granted and affirmed on appeal.
- Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.
- A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U))The insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal.
- Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.