Opinion
No. 2011–1144 N C.
2012-04-10
WESTCHESTER MEDICAL CENTER as Assignee of Pedro Cortesarellano, Appellant, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.
Present: MOLIA, J.P., NICOLAI and LaCAVA, JJ.
Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated February 24, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff's motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law ( see New York Hosp. Med. Ctr. of Queens v. Statewide Ins. Co., 33 Misc.3d 130[A], 2011 N.Y. Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011] ).
However, the District Court should have denied defendant's cross motion for summary judgment dismissing the complaint as well. Defendant failed to submit any evidence from which the circumstances of the accident could be ascertained, and its proof was therefore insufficient to demonstrate that plaintiff's assignor's alleged intoxicated condition was a proximate cause of the accident ( seeInsurance Law § 5103[b][2]; Insurance Department Regulations [11 NYCRR] § 65–3.14[b][1]; Westchester Med. Ctr. v. Government Empls. Ins. Co., 77 AD3d 737 [2010];Lynch v.. Progressive Ins. Co., 12 AD3d 570 [2004] ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.