V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 50615(U))

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered July 5, 2011. The judgment, entered upon the denial of plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law or, in the alternative, to declare a mistrial; upon a jury verdict; and upon an order of the same court dated October 27, 2006 denying plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence and for a new trial, dismissed the complaint.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated October 27, 2006 is deemed a premature notice of appeal from the judgment entered July 5, 2011 (see CPLR 5520 [c]); and it is further,

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. Prior to trial, the parties stipulated that the sole question for the jury’s determination was whether the motor vehicle collision at issue was the result of an intentionally caused event. An investigator from defendant’s Special Investigation Unit was the only witness called to testify. Thereafter, plaintiff moved, pursuant to CPLR 4401, for judgment as a matter of law or, in the alternative, to declare a mistrial. Defendant opposed, and the Civil Court denied plaintiff’s motion. The jury unanimously returned a verdict in favor of defendant, finding that the motor vehicle collision was the result of an intentionally caused event. Following the verdict, plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial. Defendant opposed, and, by order dated October 27, 2006, the Civil Court denied plaintiff’s motion. We deem plaintiff’s notice of appeal from the October 27, 2006 order to be a premature notice of appeal from the judgment dismissing the complaint entered July 5, 2011 (see CPLR 5520 [c]).

“[A]n untimely [claim] denial does not preclude a defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme” (Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53, 54 [App Term, 2d & 11th Jud Dists 2004] see also Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005] Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002] V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, contrary to plaintiff’s contention, the testimony proffered by defendant’s witness was relevant to [*2]defendant’s defense that there was no coverage because “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, the branch of plaintiff’s motion seeking the declaration of a mistrial was properly denied by the Civil Court (see Mussari v Davidson, 93 AD2d 996 [1983]).

Furthermore, a fair interpretation of the evidence presented at trial (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995] Cohen v Hallmark Cards, 45 NY2d 493 [1978] DiGiacomo v County of Westchester, 112 AD3d 779 [2013]) supports the jury’s finding that the collision at issue was the result of an intentionally caused event (see Central Gen. Hosp., 90 NY2d at 199; Matter of Eagle Ins. Co., 22 AD3d 846; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005] State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003] Matter of Metro Med. Diagnostics, 293 AD2d 751; V.S. Med. Servs., P.C., 25 Misc 3d 39). Thus, the branch of plaintiff’s motion seeking judgment as a matter of law and the motion to set aside the verdict as contrary to the weight of the evidence and for a new trial were properly denied by the Civil Court. We note that we do not consider those factual assertions contained in plaintiff’s brief, or the materials annexed thereto, which, there being no record of their having been presented to the Civil Court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014