PLAINTIFF’S PRIMA FACIA CASE AND ASSIGNMENT OF BENEFITS

PLAINTIFF’S PRIMA FACIA CASE AND ASSIGNMENT OF BENEFITS

Beal-Medea Prods., Inc. v Geico Gen. Ins. Co. 2016 NY Slip Op 50594(U)

Appellate Term confirms, post Vivienne Etienne that an assignment is not part of Plaintiff’s prima facia case.  Plaintiff moved to have its assignment of benefits admitted into evidence, the lower Court denied and instead granted Defendant insurer’s motion to dismiss the case.  The Appellate Term reversed saying:

Plaintiff’s motion should have been granted. Defendant’s CPLR 4401 motion for judgment as a matter of law was made before the close of plaintiff’s case, and was therefore premature (see Kamanou v Bert, 94 AD3d 704 [2012]). Furthermore, the court’s reason for granting the application was erroneous, as a no-fault plaintiff is not required to submit an executed assignment of benefits in order to demonstrate its prima facie entitlement to recover on a no-fault claim (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005], affd 9 NY3d 312 [2007]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

The Court further reasoned that an assignment only becomes an issue if insurer either raises it in verification or in a timely denial:

Rather, for the assignment of benefits to become a subject of inquiry, a defendant must first demonstrate that it timely and properly raised an issue with respect to the assignment (see Hospital for Joint Diseases, 21 AD3d 348; Urban Radiology, P.C., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U]).

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