Opinion
No. 2010–2148 K C.
2011-12-21
FRIENDLY PHYSICIAN, P.C. as Assignee of Lloy Welds, Respondent, v. GEICO INS. CO., Appellant.
Present: STEINHARDT, J.P., PESCE and WESTON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 4, 2010. 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 N.Y.2d 195, 199 [1997];Mid Atl. Med., P.C. v. Harleysville Worcester Ins. Co., 23 Misc.3d 132[A], 2009 N.Y. 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.