Mary Immaculate Hosp. v Countrywide Ins. Co. (2006 NY Slip Op 51222(U))

Supreme Court, Nassau County

018617/05

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P. O. Box 1144

Bellmore, NY 11710

Jaffe & Nohavicka, Esqs.

Attorneys for Defendant

40 Wall Street, 12th Floor

New York, NY 10005

Thomas P. Phelan, J.

Motion by plaintiff Mary Immaculate Hospital, a/a/o Thomas Matamoros (Hospital) for an order pursuant to CPLR 3212 awarding it summary judgment is granted.

Cross-motion by defendant Countrywide Insurance Company (Countrywide) for an order awarding it summary judgment dismissing plaintiff’s complaint is denied.

Plaintiff brings this action pursuant to Insurance Law §5101 et seq. to recover no-fault benefits alleged due under an insurance policy issued by defendant Countrywide for $55,105.27 in medical services provided by plaintiff Hospital (as assignee) to Matamoros (as assignor).

The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626).

The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the [*2]absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062).

However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Alvarez v. Prospect Hosp., 68 NY2d 320).

Plaintiff has submitted prima facie evidence that it served the appropriate no fault billing form and that said claim was not timely paid. Payment by defendant was therefor overdue (Dermatossian v. New York City Transit Authority, 67 NY2d 219, 224; see, New York Hospital Medical Center of Queens v. New York Central Mut. Fire Ins. Co., 8 AD3d 640).

In response, defendant submits sufficient evidence to create an issue of fact over whether defendant timely denied plaintiff’s claim premised upon an alleged exclusion from coverage where the injury to plaintiff’s assignor occurred while “committing an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer” (see Insurance Law §5103(b)(3); 11 NYCRR 65.1-1).

Defendant, however, fails to provide evidence to establish, prima facie, entitlement to application of the alleged exclusion. Notably absent from defendant’s proof is that the permitted exclusion was in fact incorporated into the insurance policy upon which plaintiff brings its claim for no fault recovery.

The subject exclusion, while statutorily permitted and specifically included in the mandatory endorsement promulgated by the Superintendent of Insurance, is not required. “[A]n insurer may, at its option, delete the exclusion and cover the risk” (Servido v. Superintendent of Ins., 53 NY2d 1042, [1981] revg. on dissenting op. 77 AD2d 70, 80-81 [1st Dept., 1980]). Defendant neither alleges nor establishes the specific contents of its policy with plaintiff’s assignor, Matamoros.

Moreover, defendant provides nothing to demonstrate that Mr. Matamoros was, in fact, committing a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer. The affidavit by defendant’s eyewitness establishes only that Matamoros was running at the time of the accident and the Police Accident Report provided by defendant is inadmissible (Holliday v. Hudson Armored Car & Courier Service, Inc., 301 AD2d 392 [1st Dept., 2003]).

Assuming, arguendo, as alleged in the Police Accident Report that “pedestrian [Matamoros] was struck by veh[icle] #1 while trying to flee security at Barnes and Noble” this, nevertheless, does not create an issue of fact regarding the commission of a felony or flight from lawful apprehension or arrest by a law enforcement officer. Mere conclusions and unsubstantiated allegations or assertions are insufficient to defeat summary judgment (Zuckerman v. City of New York, [1980] 49 NY2d 557, 562; Aghabi v. Sebro, 256 AD2d 287 [2nd Dept., 1998]) as are speculation and surmise (Beecher v. Northern Men’s Sauna, 272 AD2d 281 [2nd Dept., 2000]; Lahowin v. Ganley, 265 AD2d 530 [2nd Dept., 1999]).

Accordingly, plaintiff is awarded summary judgment against defendant on its claim for $55,105.27 together with statutory interest from October 15, 2005, statutory attorney’s fees, costs and disbursements.

The Clerk may enter judgment.

This decision constitutes the order of the court.

Dated: JUNE 28, 2006 THOMAS P. PHELAN

J.S.C.

APPEARANCES OF COUNSEL