INDEX NO. 151388/2014
04-27-2018
21ST CENTURY SECURITY v. ALL, ALEX
JENNIFER G. SCHECTER Justice
NYSCEF DOC. NO. 115 PRESENT: JENNIFER G. SCHECTER Justice MOTION DATE 04/18/2018 MOTION SEQ. NO. 004 The following papers, numbered 1 to 4 ,were read on this motion for sum judg
| Notice of Motion/ Petition/ OSC - Affidavits - Exhibits | No(s) 1 |
| Answering Affidavits - Exhibits | No(s) 2,3 |
| Replying Affidavits | No(s) 4 |
Upon the foregoing papers, it is ordered that this motion is DENIED. Pursuant to CPLR 3212, plaintiff moves for summary judgment against Adelaida Physical Therapy PC, Charles Deng Acupuncture PC, Delta Diagnostic Radiology PC, Island Life Chiropractic Pain Care PLLC and Jaime G. Gutierrez, MD (collectively Defendants), seeking a declaration that the April 22, 2012 incident (Accident) was staged and not covered under the applicable insurance policy. In support of its motion plaintiff submits, among other exhibits, the affidavit of its Investigative Analyst (IA) who concludes that the Accident was "in furtherance of an intentional loss for the sole purpose of defrauding [plaintiff] and the public at large" (Affirmation in Support, Ex 2 at ¶ 4). "'An intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance'" (Nationwide General ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]). Here, plaintiff failed to establish entitlement to judgment as a matter of law on the ground that the Accident was staged (Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [1st Dept 2016]; see also Allstate Property & Cas. Ins. Co. v Carrier, 2013 WL 12196784 [Sup Ct, Kings County 2013]; AA Acupuncture Service, P.C. v State Farm Mut. Auto. Ins. Co., 19 Misc3d 1139[A] [Civ Ct, New York County 2008]). The evidentiary proof submitted by plaintiff, while sufficient to demonstrate that it had a founded belief that any injuries sustained were in a staged accident, are insufficient to demonstrate as a matter of law that the injuries did not arise out of an insured incident so as to warrant summary judgment dismissing the complaint (id.; Easy Care Acupuncture, PC v Hartford Ins. Co. 57 Misc 3d 147[A] [App Term, 1st Dept 2017]; Nationwide General ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]). Significantly, the affidavit of the IA is based in large part on hearsay. Additionally, though there are inconsistencies in the testimony of those allegedly in the Accident that raise serious credibility issues, the inconsistencies do not pertain to the nature of the Accident itself so as to meet the heavy burden required to obtain summary judgment and raise issues of fact that must be addressed at trial (Easy Care Acupuncture, PC v Hartford Ins. Co. 57 Misc 3d 147[A] [App Term, 1st Dept 2017]). Accordingly, it is ORDERED that the motion is denied. DATED: 4/27/2018 /s/ _________
JENNIFER G. SCHECTER , J.S.C.