November 9, 2018

Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))

Headnote

The main issues in this case involved the recovery of assigned first-party no-fault benefits by a medical provider. The court considered the transcript of the examination under oath (EUO) of the insured, who testified that the insured vehicle had not been involved in the alleged accident. The court granted the defendant's motion for summary judgment, dismissing the complaint, and denied the plaintiff's cross motion for summary judgment. The holding of the court was that the defendant's insured's testimony in the EUO was sufficient to demonstrate that the alleged injury did not arise out of an insured incident. The court affirmed the order, with costs, as plaintiff failed to raise a triable issue of fact in opposition to defendant's motion.

Reported in New York Official Reports at Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))

Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U)) [*1]

Jamaica Wellness Med., P.C. v Hereford Ins. Co.

2018 NY Slip Op 51586(U) [61 Misc 3d 138(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2655 K C

Jamaica Wellness Medical, P.C., as Assignee of Nelson Shaquan, Appellant,
against
Hereford Insurance Company, Respondent.

Law Offices of Melissa Betancourt (Melissa Betancourt of counsel), for appellant. Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 25, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident on February 13, 2013, and denied plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, 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 Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018