Ema Acupuncture, P.C. v State Farm Ins. Co.

[*1] Ema Acupuncture, P.C. v State Farm Ins. Co. 2007 NY Slip Op 51603(U) [16 Misc 3d 135(A)] Decided on August 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., RIOS and BELEN, JJ
2006-326 K C.

Ema Acupuncture, P.C. a/a/o Nadiya Basista, Viktor Belousov, Eduard Kholoditsky and Vladimir Titiov, Respondent,

against

State Farm Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 6, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment.

Order, insofar as appealed from, modified by providing that plaintiff's motion for summary judgment upon the claim relating to assignor Vladimir Titiov is denied; as so modified, affirmed without costs.

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 a triable issue of fact as to whether the injuries plaintiff's assignors allegedly sustained arose from insured incidents (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant's investigator, insofar as it related to assignor Vladimir Titiov, was sufficient to demonstrate that defendant possessed a "founded belief that [his] 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 with respect to assignor Vladimir Titiov (see Central Gen. Hosp. v [*2]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 upon this branch of its motion.

We further find that the affidavit submitted by defendant's investigator with respect to assignors Nadiya Basista, Viktor Belousov and Eduard Kholoditsky was insufficient to demonstrate a "founded belief that [their] alleged injur[ies] do[] not arise out of an insured incident" (id. at 199). Accordingly, to the extent the order granted plaintiff's motion for summary judgment as to these assignors, it is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007