New Way Med., P.C. v Kemper Ins. Co.

[*1] New Way Med., P.C. v Kemper Ins. Co. 2007 NY Slip Op 50535(U) [15 Misc 3d 127(A)] Decided on March 19, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1842 K C.

New Way Medical, P.C. a/a/o JUAN ORELLANA, Appellant,

against

Kemper Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 15, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiff moved for summary judgment, and defendant opposed. The lower court denied plaintiff's motion and this appeal ensued.

Under the circumstances presented, we find that plaintiff's motion was properly denied, as defendant raised a triable issue which was "premised on the fact or founded belief that the alleged injury...[did] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 19, 2007