Opinion
2008-408 Q C.
Decided May 22, 2009.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 9, 2006. The judgment, after a nonjury trial, dismissed the complaint.
Judgment affirmed without costs.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
At the trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff established its prima facie case. Plaintiff then made a motion in limine to have the court accord the December 2005 order, deciding a summary judgment motion in a prior case between the parties, collateral estoppel effect in the instant action. In the prior action, plaintiff rendered services to a different assignor for injuries he sustained in the same accident as the assignor herein, and the order found that the affidavit of defendant's investigator was insufficient to support a founded belief that the loss did not arise out of an insured incident. In the case at bar, the Civil Court denied plaintiff's motion.
Defendant's sole witness at trial was its investigator, and during her testimony, plaintiff did not object to the admission into evidence of several auto claim service records, the insurance policy, claim forms, and denial of claim forms. The court found in favor of defendant and dismissed the complaint, holding that defendant "established that the assignor in this case was involved in an insurance fraud scheme with the intent to defraud the carrier for medical benefits." The instant appeal by plaintiff ensued.
In support of its motion, plaintiff failed to show that the identical issues were decided in the prior action, and are decisive in the present action ( see Luscher v Arrua, 21 AD3d 1005). Moreover, a review of the record indicates that defendant met its burden of proving that the loss did not arise out of an insured incident. Accordingly, the Civil Court properly awarded judgment dismissing the complaint.
Pesce, P.J., Rios and Steinhardt, JJ., concur.