Opinion
No. 2023-75 K C
09-22-2023
Jules Francois Parisien, M.D., as Assignee of Anthony Wright, Appellant, v. Esurance, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni and Barry Cohen of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Abrams, Cohen & Associates, P.C. (Frank Piccininni and Barry Cohen of counsel), for respondent.
PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Betty Lugo, J.), dated June 21, 2022. The order denied plaintiff's motion for summary judgment and granted defendant's cross-motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross-motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground, among others, that the accident was a staged, intentional act for which there was no insurance coverage. By order dated June 21, 2022, the Civil Court denied plaintiff's motion and granted defendant's cross-motion.
We note that the Civil Court erroneously referred to defendant's "motion" and plaintiff's "cross-motion."
A review of the record indicates that plaintiff was not entitled to summary judgment since it failed to demonstrate, prima facie, that defendant had either failed to timely deny the claims (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d 498 [2015]) or that the denial of claim forms were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 A.D.3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc.3d 128 [A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, the Civil Court properly denied plaintiff's motion for summary judgment.
It is well settled that "an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance" (Matter of Liberty Mut. Ins. Co. v Goddard, 29 A.D.3d 698, 699 [2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos.,90 N.Y.2d 195 [1997]; Nationwide Gen. Ins. Co. v Bates, 130 A.D.3d 795 [2015]). In support of this defense, defendant submitted numerous documents and photographs, including the affidavit of its senior investigator who concluded, based upon his review of a Department of Motor Vehicles abstract, police reports, and ISO claim search records, as well as transcripts of examinations under oath of people involved in the incident, that the collision in which plaintiff's assignor was allegedly injured was "a staged/caused event for which there was no coverage." Although defendant demonstrated that it possessed a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp., 90 N.Y.2d at 199), defendant failed to submit sufficient evidence in admissible form to establish that conclusion as a matter of law, so as to warrant dismissal of the complaint (see Lexington Acupuncture, P.C. v GEICO Ins. Co., 19 Misc.3d 128 [A], 2008 NY Slip Op 50519[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). We note that, contrary to plaintiff's contention, defendant did not cross-move for dismissal on the ground that there was a material misrepresentation in the procurement of the insurance policy and, as a result, we do not pass upon that issue.
Accordingly, the order is modified by providing that defendant's cross-motion for summary judgment dismissing the complaint is denied.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.