D.A.V. Chiropractic, P.C. v GEICO Indem. Co.

[*1] D.A.V. Chiropractic, P.C. v GEICO Indem. Co. 2008 NY Slip Op 52304(U) [21 Misc 3d 138(A)] Decided on November 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2008-209 N C.

D.A.V. Chiropractic, P.C., LVOV ACUPUNCTURE, P.C., and SOMUN ACUPUNCTURE, P.C. a/a/o KAREEM HOLLAND, PHLAURE CADET and PERVIL SOSTHENE, Respondents,

against

GEICO Indemnity Company, Appellant.

Appeal from an amended order of the District Court of Nassau County, Third District (Edmund M. Dane, J.), entered October 22, 2007, deemed from a judgment of said court entered October 23, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the October 22, 2007 order granting plaintiffs' motion for summary judgment, awarded plaintiffs the principal sum of $12,464.60.

Judgment affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant argued that there was an issue of fact because the insurance policy was fraudulently procured as a result of identity theft and that plaintiffs were collaterally estopped from litigating such issue. The court below granted plaintiffs' motion for summary judgment, holding that defendant waived its argument regarding collateral estoppel and that defendant failed to present any evidence demonstrating either cancellation of the insurance policy prior to the accident or that plaintiffs' assignors participated in the fraudulent procurement of the insurance policy. A judgment was subsequently entered. The instant appeal by plaintiffs ensued.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). A review of the record [*2]indicates that the affidavit submitted by plaintiffs' billing manager sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d
136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, the record establishes plaintiffs' prima facie entitlement to summary judgment.

While defendant contends that plaintiffs are not entitled to summary judgment because the insurance policy was obtained fraudulently as a result of identity theft, despite the passage of more than five years since the accident, the record is bereft of any evidence that plaintiffs' assignors participated in the fraudulent scheme (cf. A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Defendant's contention that a prior determination of the Civil Court of the City of New York, Kings County, which found there to be an issue of fact as to whether the insurance policy at issue was obtained by fraud, collaterally estops plaintiff in this case lacks merit because said order merely denied a motion for summary judgment, and was not sufficiently final to be accorded collateral estoppel effect (see Brown v Citibank, N.A., 304 AD2d 513 [2003]; Zangiacomi v Hood, 193 AD2d 188 [1993]). Since defendant did not cancel the insurance policy prior to the accident (see Vehicle and Traffic Law § 313), defendant failed to demonstrate the existence of an issue of fact so as to defeat plaintiffs' motion for summary judgment (see Matter of Metlife Auto
& Home v Agudelo, 8 AD3d 571 [2004]; cf. A.B. Med Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is affirmed.

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: November 07, 2008