Opinion
Index No. CV-704767-20/QU
03-01-2022
PREMIER ANESTHESIA, Plaintiff(s), v. AVIS BUDGET CAR RENTAL, LLC, Defendant(s).
Plaintiff's counsel: Law Offices of Gabriel & Moroff, P.C., 100 Merrick Road, Suite 430 W, Rockville Centre, NY 11570 Defendant's counsel: Rubin, Fiorella & Friedman, LLP, 630 Third Avenue, 3rd Floor, New York, NY 10017
Plaintiff's counsel: Law Offices of Gabriel & Moroff, P.C., 100 Merrick Road, Suite 430 W, Rockville Centre, NY 11570
Defendant's counsel: Rubin, Fiorella & Friedman, LLP, 630 Third Avenue, 3rd Floor, New York, NY 10017
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint: Papers Numbered
Defendant's Notice of Motion and Affirmation dated August 27, 2020 ("Motion") and electronically filed with the court on the same date 1
II. Background
In a summons and complaint filed on February 20, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,350.00 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Estrada-Leyva on November 6, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Boucher, Ex. A). Defendant moved for summary judgment dismissing Plaintiff's complaint on the grounds that Defendant was not liable for Plaintiff's claim. Plaintiff did not oppose Defendant's motion.
III. Discussion and Decision
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" ( CPLR 3212[b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
Here, Defendant argued that it was not liable for Plaintiff's claim because it did not insure any vehicle involved in the collision which caused Estrada-Leyva's injury necessitating his subsequent treatment. Rather, Defendant contended that Estrada-Leyva operated a vehicle insured by Tokio Marine America Insurance Company ("Tokio "). To prove its defense, Defendant relied on a police accident report. It is well established that police accident reports contain two layers of hearsay which must be overcome in order for the reports to be admissible. First, the report itself must be rendered admissible through its certification, which must establish that it was made in the regular course of business, that it was the regular course of the business to make it, and that it was made at the time of the act, transaction or occurrence or a reasonable time thereafter ( Yassin v Blackman , 188 AD3d 62, 65-66 [2d Dept 2020] ). Secondly, statements recorded in the police accident report must fall within a hearsay exception for the statements to be admissible. In our instant case, the police accident report was inadmissible because it was neither certified ( Yassin v Blackman , 188 AD3d at 66 ; Progressive Advanced Ins. Co. v McAdam , 139 AD3d 691, 692 [2d Dept 2016] ; Nationwide Gen. Ins. Co. v Bates , 130 AD3d 795, 796 [2d Dept 2015] ), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts (LMS Med. Care v American Tr. Ins. Co. , 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011], see Yassin v Blackman , 188 AD3d at 66 ). As such, "the report and its contents constitute inadmissible hearsay" ( Yassin v Blackman , 188 AD3d at 66 ). Even if this Court were to consider the inadmissible police accident report, it would not independently establish that Defendant did not insure either vehicle. Instead, the police report indicated "Ins. Code" 764 for the vehicle Estrada-Leyva operated and 100 for the vehicle operated by the other driver. While Defendant maintained that code 764 indicated Tokio, that fact is not apparent from the face of the police report.
While the presence of an insurance code on a police accident report constitutes prima facie evidence that a vehicle is insured ( Matter of Lincoln Gen. Ins. Co. v Williams , 73 AD3d 778, 779 [2d Dept 2010] ; Matter of Continental Ins. Co. v Biondo , 50 AD3d 1034, 1034 [2d Dept 2008] ; Eveready Ins. Co. v Chavis , 150 AD2d 332, 334 [2d Dept 1989] ), the issue in this case is whether Defendant insured a vehicle involved in the collision (see Matter of AutoOne Ins. Co. v Hutchinson , 71 AD3d 1011, 1012 [2d Dept 2010] ). "Every insurance company authorized to do business in this State is assigned an identification number used by police departments in completing accident reports" ( Eveready Ins. Co. v Chavis , 150 AD2d at 334, see Brogan v New Hampshire Ins. Co. , 250 AD2d 562, 562 [2d Dept 1998] ). In order for Defendant to prove that it did not insure a vehicle involved in the collision, evidence of its insurance code and that its code did not match a code indicated on the police accident report was required (see Brogan v New Hampshire Ins. Co. , 250 AD2d at 563 ). To demonstrate that another insurance carrier insured the vehicles involved in the accident, the identity of the insurance carriers whose codes were indicated on the police accident report was required (see Brogan v New Hampshire Ins. Co. , 250 AD2d at 563 ; Matter of Colonial Penn Ins. Co. v Feldman , 145 AD2d 420, 420-21 [2d Dept 1988] ). Defendant presented an affidavit sworn June 9, 2020, in which Clair, a claims and litigation representative employed by Sedgwick Claims Management Services, Inc. ("Sedgwick "), attested that Tokio was referenced by code 764 in the police accident report; however, she did not establish the basis of her knowledge of that fact, how the other vehicle was insured by Geico or how the police report did not reference Defendant. Therefore, Defendant failed to demonstrate that it did not insure a vehicle involved in the accident (see Brogan v New Hampshire Ins. Co. , 250 AD2d at 563 ), prima facie , based on its Motion papers.
Finally, Clair also attested that Sedgwick handled insurance claims for both Defendant and Tokio, but maintained separate mailing addresses and employed different personnel ensure that each insurer's claims were handled separately to avoid conflicts of interest (see Motion, Aff. of Clair at 2). Clair attested that she handled Tokio's claims, including the one at issue in this case. While Clair attested to Sedgwick's standard claim handling procedures, Clair's denial of receiving Plaintiff's claim for No Fault benefits would only establish Tokio's nonliability for the claim, but not Defendant's nonliability for the claim.
IV. Order
Accordingly, it is
ORDERED that Defendant's Motion for summary judgment is denied without prejudice.
This constitutes the court's Decision and Order.