March 17, 2009

Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 50493(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-utica-mut-ins-co-2009-ny-slip-op50493u/

Court: Appellate Term, Second Department
Decided: March 17, 2009
Citation: 2009 NY Slip Op 50493(U) · 22 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Staged accidents, lack of coverage Verification requests
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 22 Misc 3d 142(A), 2009 NY Slip Op 50493(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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.

The insurer's evidence failed to establish a founded belief that the assignor's injuries arose from a staged accident. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment. The staged-accident defense was pleaded with particularity, but the investigator's affidavit, EUO testimony, and adverse driver's unsworn statement were insufficient to defeat the motion. The insurer also asserted that the assignor's failure to supply personal income tax returns breached a coverage condition. Because those returns contained broader private information than needed to substantiate lost wages, and more focused means were available, the insurer failed to show special circumstances warranting production. The court left open whether CPLR 3016 (b) governed the staged-accident defense and whether withholding the returns breached a condition precedent.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 50493(U))

[*1]

Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co.

2009 NY Slip Op 50493(U) [22 Misc 3d 142(A)]

Decided on March 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-499 K C.

Vista Surgical Supplies, Inc. a/a/o JESUS RODRIGUEZ, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 11, 2007, deemed from a judgment of the same court entered December 13, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 11, 2007 order denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $612.69.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that the alleged injuries did not arise from an insured incident and that the assignor failed to comply with a condition precedent to coverage. The Civil Court granted plaintiff’s motion, holding that defendant did not plead fraud with the requisite particularity and that it did not establish a founded belief that the accident at issue was intentional. The instant appeal ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In its answer, defendant asserted, as an affirmative defense, that “the accident that is alleged in plaintiff’s complaint was not an accident, but a staged, intentional act, for which there is no insurance coverage.” We need not determine whether this affirmative defense, which has been treated as a lack of coverage defense (see Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), is, for the purpose of CPLR 3016 (b), based upon fraud, such that the rule’s pleading requirements are triggered, since, in any event, the defense was stated with particularity. To the extent that defendant’s [*2]conclusory allegations of “illegal and/or fraudulent conduct,” and “material misrepresentations [made] in the presentation of the claim,” may have applied to circumstances other than its staged accident defense, defendant failed to meet the pleading requirements of CPLR 3016 (b) or to raise such defenses in opposition to plaintiff’s motion for summary judgment (see First Trust Natl. Assn. v DeLuca, 284 AD2d 494 [2001]).

In view of the foregoing, in order to successfully oppose plaintiff’s motion, defendant was required to establish “the fact or founded belief that 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]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit submitted by defendant’s investigator, the testimony given by plaintiff’s assignor and the driver during their examinations under oath, and the unsworn statement of the adverse driver submitted by defendant were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp., 90 NY2d 195).

Defendant argues that plaintiff’s assignor failed to provide his personal income tax returns, which defendant claims to have requested in order to substantiate the assignor’s alleged lost wages claim, and thus failed to comply with a condition precedent to coverage. We need not determine whether plaintiff’s assignor failed to comply with a condition precedent since, in light of the “confidential and private nature” of an individual’s income tax returns (see Walter Karl, Inc. v Wood, 161 AD2d 704 [1990]), which contain information far broader than that sought by defendant, defendant failed to make a sufficient showing of special circumstances to warrant their production (see Dore v Allstate Indem. Co., 264 AD2d 804 [1999]), especially given the fact that the information sought could have been obtained through other, more focused, means.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 2009

Legal questions

A question 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.

No covered accident (founded belief)

Open the full map

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 investigator's affidavit, the EUO testimony of the assignor and driver, and an unsworn adverse-driver statement insufficient to show a founded belief that the injuries did not arise from a covered accident, so the provider's summary judgment stood.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud.

Cited by

A label shows how the later decision treated this one.

West Tremont Med. Diagnostics P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51325(U)) FollowedThe insurer failed to establish a founded belief supporting its staged-accident defense, and its policy-exclusion defense was precluded.
Apazidis, M.D., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50498(U))The insurer's summary judgment motion failed on hearsay proof of good cause and verification notices naming a different provider.
Jiang Acupuncture PC v State Farm Ins. Co. (2023 NY Slip Op 50961(U))The insurer failed to prove good cause for licensing verification with admissible evidence supporting summary judgment.

Similar decisions

Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials.
Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2007 NY Slip Op 50163(U))The insurer raised a coverage issue through a founded belief of insurance fraud despite failing to prove timely denials.
A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.
AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))An untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.