Unitrin Safeguard Insurance Company, Plaintiff-Respondent, v Jermail Manuel, et al., Defendants, Abdul-Massih Family Health Nurse Practitioner PC, et al., Defendants-Appellants.
Index No. 160090/22, Appeal No. 3944, Case No. 2024-00362
Appellate Division, First Department
March 20, 2025
2025 NY Slip Op 01727
Manzanet-Daniels, J.P., Kern, Kapnick, González, Scarpulla, JJ.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
The
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 12, 2024, which granted plaintiff ‘s motion for summary judgment declaring that it had no duty to pay no-fault insurance claims to defendants Abdul-Massih Family Health Nurse Practitioner PC, Andrew Glyptis, MD, Brefni Chiropractic Diagnostics, PC, Emote Medical Services, PC, Kuman Medical Supply Inc., Masood Chiropractic Diagnostic, P.C., and Spine Care Chiropractic, P.C. (collectively, defendant providers) arising out of the underlying accident, unanimously affirmed, without costs.
Defendant claimants claimed that they were passengers in a covered vehicle and sustained injuries during a January 9, 2022 accident, and notified plaintiff that they intended to submit claims for no-fault benefits. However, claimants never answered the complaint or otherwise appeared in this action, and plaintiff obtained a default judgment against them. The remaining defendants are medical providers that submitted tens of thousands of dollars in no-fault claims as assignees of claimants.
The court properly granted plaintiff summary judgment declaring that it had no duty to pay no-fault claims to defendant providers, as plaintiff demonstrated a founded belief that claimants’ injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff proffered an affidavit from a claims investigator detailing the circumstances of the accident that led to the investigation, including the magnitude of the claims submitted, the absence of any claims for damage to the vehicle, and the lack of a police report. Plaintiff submitted affidavits from the occupants of the adverse vehicle, who characterized the accident as a bumper “tap” resulting in no visible damage to the covered vehicle or injury to the driver. The occupants of the adverse vehicle also stated they were able to see into the covered vehicle and there were no passengers within (see State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp., 203 AD3d 556, 558 [1st Dept 2022]). Plaintiff also pointed out “red flags” in claimants’ examinations under oath (EUOs) which undermined the credibility of their accounts (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455 [1st Dept 2021]).
In opposition, defendant providers failed to raise an issue of fact, as they did not submit an affidavit of someone with personal knowledge of the legitimacy and circumstances of the
Although defendant providers argue that plaintiff‘s summary judgment motion was premature, they failed to demonstrate that any proof necessary for their opposition was exclusively within plaintiff‘s possession or that they made further attempts to obtain that information (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; see also
ENTERED: March 20, 2025