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Friendly Physician, P.C. As Assignee of Lloy Welds v. Geico Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 21, 2011

FRIENDLY PHYSICIAN, P.C. AS ASSIGNEE OF LLOY WELDS,
RESPONDENT,
v.
GEICO INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 4, 2010.

Friendly Physician, P.C. v GEICO Ins. Co.

Decided on December 21, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion for summary judgment.

Contrary to defendant's only contentions on appeal regarding plaintiff's prima facie showing of its entitlement to judgment as a matter of law, plaintiff demonstrated that the subject bills were submitted to defendant and that they set forth the fact and the amount of the loss sustained. However, we find that the sworn statements submitted by defendant in opposition to plaintiff's motion were sufficient to raise a triable issue of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, 11th and 13th Jud Dists 2009]). Accordingly, the order granting plaintiff's motion for summary judgment is reversed and plaintiff's motion is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

Decision Date: December 21, 2011

20111221

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