Bedford Park Med. Practice, P.C. v State Farm Mut. Ins. Co.

[*1] Bedford Park Med. Practice, P.C. v State Farm Mut. Ins. Co. 2007 NY Slip Op 52285(U) [17 Misc 3d 136(A)] Decided on November 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1174 Q C.

Bedford Park Medical Practice, P.C. a/a/o Blanca Martinez, Respondent,

against

State Farm Mutual Insurance Company,

Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered March 6, 2006, deemed an appeal from the judgment entered on May 3, 2006 (see CPLR 5501 [c]) . The judgment, entered pursuant to the March 6, 2006 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,696.41.

Judgment reversed without costs, so much of the order entered March 6, 2006 as 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 and a judgment was entered pursuant thereto. 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). 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. Accordingly, the judgment in favor of plaintiff is reversed, the order, insofar as it granted plaintiff's motion for summary judgment, is vacated and plaintiff's motion for summary judgment is denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur. [*2]
Decision Date: November 21, 2007