A.B. Med. Servs. PLLC v GMAC Ins.

[*1] A.B. Med. Servs. PLLC v GMAC Ins. 2005 NYSlipOp 51079(U) Decided on July 7, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-911 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C., LVOV ACUPUNCTURE P.C., a/a/o VLADIMIR MARCELIN, Appellants,

against

GMAC Insurance, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted claims, 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]; Amaze Med.
Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiffs' motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). Unlike the affidavit in the case of A.B. Medical Servs. PLLC v GMAC Ins., 7 Misc 3d 132[A], 2005 NY Slip Op 50602[U] [App Term, 2d & 11th Jud Dists]), the affidavit of the defendant's claims representative herein set forth additional facts sufficient to demonstrate that the defense was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp, 90 NY2d at 199 [1997]; Mount Sinai Hosp., 263 AD2d at 18-19). [*2]Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs' motion for summary judgment was properly denied.
Decision Date: July 07, 2005