Opinion
2007-105 Q C.
Decided March 7, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2006, deemed from a judgment entered December 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2006 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,854.30.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
Judgment reversed without costs, so much of the order entered September 21, 2006 as granted plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issues raised by defendant are whether it proffered sufficient evidence in support of its cross motion for summary judgment to entitle it to dismissal of plaintiff's complaint due to the fact that the injuries sustained by plaintiff's assignor did not arise from an insured incident ( see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199) or, in the alternative, whether it proffered sufficient evidence in opposition to plaintiff's motion for summary judgment to defeat same. Upon a review of the record, we find that while defendant demonstrated that it possessed a "founded belief that the alleged injur[ies] do not arise out of an insured incident" ( id. at 199) so as to defeat plaintiff's motion, it failed to submit sufficient evidence in admissible form to establish, as a matter of law, "that the alleged injur[ies] do not arise out of an insured incident" ( id.) so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment upon their respective motion and cross motion seeking such relief ( see Zuckerman v City of New York, 49 NY2d 557).
Weston Patterson, J.P., Golia and Rios, JJ., concur.