Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co.

[*1] Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co. 2006 NYSlipOp 51351(U) Decided on July 6, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 25, 2006; it will not be published in the printed Official Reports.

Decided on July 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-678 Q C. NO. 2005-678 Q C

Psychology & Massage Therapy Assoc., PLLC Assignee of GREGORY PRZYBOROUWSKI, HECTOR MORALES SONIA GUARDADO, DICSIANA REYES and ISABEL GONZALEZ, Respondent,

against

Progressive Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered August 17, 2004. The order, insofar as appealed from, granted plaintiff's motion for partial summary judgment as to its ninth cause of action and denied defendant's cross motion for partial summary judgment as to said cause of action.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for health services rendered to its assignor. Plaintiff moved for partial summary judgment as to its first, fifth, seventh and ninth causes of action, and defendant cross-moved for partial summary judgment as to plaintiff's first and ninth causes of action. The order, insofar as appealed from, granted plaintiff's motion for partial summary judgment as to its ninth cause of action ($1,360.48 claim of assignor Isabel Gonzalez) and denied defendant's cross motion for partial summary judgment as to said cause of action.

Plaintiff established its prima facie entitlement to partial summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment [*2]of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Despite defendant's untimely denial of plaintiff's claim for the sum of $1,360.48, defendant was not precluded from asserting the defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488 [2001]). In support of its cross motion for summary judgment, defendant contended that the assignor, Isabel Gonzalez, was not an "eligible
injured person" (11 NYCRR 65-1.1 [d]) since she did not "regularly reside[]" (11 NYCRR 65-1.1[g]) with the insured, Sarito Gonzalez, and, as such, was not a relative of Mr. Gonzalez entitled to coverage under his insurance policy. We note that the Mandatory Personal Injury Protection Endorsement, as set forth in 11 NYCRR 65-1.1 (g), defines a relative as "a spouse, child or other person related to the named insured by blood, marriage or adoption (including a ward or foster child), who regularly resides in the insured's household, including any such person who regularly resides in the household, but is temporarily living elsewhere."

Defendant's assertion, both in the affirmation of counsel and in the affidavit of its litigation examiner, that Isabel Gonzalez did not reside with the insured, was conclusory in nature and unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) and therefore, was insufficient to demonstrate a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp., 90 NY2d 195, 199 [1997]). Accordingly, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage, and similarly failed to establish its entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In view of the foregoing, the lower court properly granted [*3]
plaintiff's motion for partial summary judgment as to its ninth cause of action and denied defendant's cross motion for partial summary judgment as to said cause of action.
Rios and Belen, JJ., concur.

Golia, J.P., concurs in part and dissents in part in a separate memorandum.
[*4]
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.

PSYCH. & MASSAGE THERAPY ASSOC., PLLC
Assignee of GREGORY PRZYBOROUWSKI, HECTOR MORALES
SONIA GUARDADO, DICSIANA REYES and ISABEL GONZALEZ,

Respondent,

-against-

PROGRESSIVE CASUALTY INS. CO.,

Appellant.

Golia, J.P., concurs in part and dissents in part and votes to modify the order, insofar as appealed from, by providing that plaintiff's motion for partial summary judgment as to its ninth cause of action is denied in the following memorandum:

I agree with the majority that "...defendant was not precluded from asserting the defense of lack of coverage..." even though such defense was not raised in a "timely" denial.

I, however, do not agree with the majority in their holding that the issue raised by the defendant "was insufficient to demonstrate a "founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident" because the affidavits by the defendant were conclusory and unsupported by competent evidence. In point of fact, the plaintiff's own submitted documents list the residence of its assignor Isabel Gonzalez to be at 342 Wyona Street in Brooklyn, New York which is not the residence of the insured.

This fact alone raises a "founded belief" that the plaintiff's assignor was not an eligible insured entitled to receive no-fault benefits, certainly sufficient to warrant a denial of plaintiff's motion for summary judgment.
Decision Date: July 6, 2006