July 7, 2005

A.B. Med. Servs. PLLC v GMAC Ins. (2005 NYSlipOp 51079(U))

Headnote

The court considered the facts of the case, where the plaintiffs were seeking to recover first-party no-fault benefits for medical services rendered to their assignor. The main issue decided was whether the plaintiffs were entitled to summary judgment, as they had established a prima facie entitlement to payment of the benefits, but the defendant asserted a defense that the injuries were not causally related to the accident. The holding of the case was that the defendant's affidavit set forth sufficient facts to demonstrate a founded belief that the injuries did not arise out of an insured incident, therefore creating a triable issue of fact. As a result, the plaintiffs' motion for summary judgment was properly denied.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v GMAC Ins. (2005 NYSlipOp 51079(U))

A.B. Med. Servs. PLLC v GMAC Ins. (2005 NYSlipOp 51079(U)) [*1]

A.B. Med. Servs. PLLC v GMAC Ins.

2005 NYSlipOp 51079(U)

Decided on July 7, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-911 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C., LVOV ACUPUNCTURE P.C., a/a/o VLADIMIR MARCELIN, Appellants,
against
GMAC Insurance, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med.
Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiffs’ motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). Unlike the affidavit in the case of A.B. Medical Servs. PLLC v GMAC Ins., 7 Misc 3d 132[A], 2005 NY Slip Op 50602[U] [App Term, 2d & 11th Jud Dists]), the affidavit of the defendant’s claims representative herein set forth additional facts sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp, 90 NY2d at 199 [1997]; Mount Sinai Hosp., 263 AD2d at 18-19). [*2]Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: July 07, 2005