Infinity Health Prods., Ltd. v State Farm Mut. Auto. Ins. Co.

[*1] Infinity Health Prods., Ltd. v State Farm Mut. Auto. Ins. Co. 2007 NY Slip Op 51612(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2006-855 K C.

Infinity Health Products, Ltd. as assignee of Zachary Pierre-Vil, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered March 17, 2006, deemed an appeal from a judgment entered on April 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff's motion for summary judgment and implicitly denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $864.75.

Judgment reversed without costs, the branch of the order entered March 17, 2006 which granted plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.

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 an issue of fact as to whether the injuries plaintiff's assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant's investigator was sufficient to demonstrate a "founded belief that the 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 [*2]there was a lack of coverage (see Central Gen. Hosp. v 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.Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007