| Executive MRI Imaging, P.C. v State Farm Ins. Co. |
| 2007 NY Slip Op 50994(U) [15 Misc 3d 139(A)] |
| Decided on May 14, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered September 30, 2005. The order granted plaintiff's motion for summary judgment.
Order reversed without costs and plaintiff's motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was granted. The sole issue 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 affidavit submitted by defendant's investigator was sufficient to demonstrate that defendant's denial was based on a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (id. at 199). Accordingly, since 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, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 14, 2007