Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co.

[*1] Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. 2007 NY Slip Op 52039(U) [17 Misc 3d 132(A)] Decided on October 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-642 Q C.

Rockaway Medical & Diagnostic, P.C., a/a/o Melissa Maldonado, Respondent,

against

State Farm Mutual Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 22, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff's cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff's cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's cross 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 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., Weston Patterson and Belen, JJ., concur.