Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 24, 2007, deemed from a judgment of the same court entered December 9, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,218.13.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that it possessed a founded belief that the injuries allegedly sustained by plaintiff's assignor did not arise out of an insured incident. The Civil Court granted
plaintiff's motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The sole issued raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff's assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the documents submitted in opposition to plaintiff's motion, including the affirmation of defendant's attorney, the copies of [*2]transcripts of witness statements and testimony, as well as the affidavits of defendant's no-fault specialist and investigator, were sufficient to demonstrate that defendant's defense of lack of coverage was "premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

Golia and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.

I find that the documents submitted in opposition to plaintiff's motion were insufficient to demonstrate that defendant's defense of lack of coverage was "premised on 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]). Thus, the judgment should be affirmed.
Decision Date: May 22, 2009