A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))

A.B. Med. Servs., PLLC v Utica Mut. Ins. Co.

2008 NY Slip Op 51859(U) [20 Misc 3d 144(A)]

Decided on September 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

A.B. Medical Services, PLLC, D.A.V. CHIROPRACTIC P.C. and LVOV ACUPUNCTURE, P.C. a/a/o HOLLIS ABERDEEN, Appellants,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 19, 2007. The order denied plaintiffs' motion for summary judgment.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant argued, inter alia, that plaintiff was not entitled to summary judgment because there was an issue of fact as to whether the assignor's injuries arose out of an insured incident. The court below denied plaintiffs' motion, finding that the affidavit executed by plaintiffs' medical billing manager was insufficient to lay a foundation for the admission, as business records, of the documents annexed to plaintiffs' moving papers. This appeal by plaintiffs ensued.

The affidavits submitted by plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted the claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; cf. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Upon a review of the record, we find that the affidavits submitted by defendant's investigators were sufficient to demonstrate that defendant possessed a "founded belief that the [*2]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]). Accordingly, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997], supra; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Consequently, the order denying plaintiffs' motion for summary judgment is affirmed, albeit on other grounds, and we reach no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008