Opinion
570143/21
11-10-2021
Community Radiology Services, PC a/a/o Lydia Rivera, Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Denise M. Dominguez, J.), dated October 28, 2020, which denied its motion for summary judgment dismissing the complaint.
PRESENT: Edmead P.J., Hagler, Silvera, JJ.
PER CURIAM.
Order (Denise M. Dominguez, J.), dated October 28, 2020, affirmed, without costs.
Defendant MVAIC's motion for summary judgment dismissing this first-party no-fault action was properly denied. The burden is on MVAIC to prove its "lack of coverage" defense in support of its motion for summary judgment (see e.g. Pomona Med. Diagnostic, P.C. v MVAIC, 32 Misc.3d 140 [A], 2011 NY Slip Op 51573[U] [App Term, 1st Dept 2011]). Here, MVAIC failed to demonstrate the absence of triable issues of fact as to whether assignor Lydia Rivera is the "de facto" owner of the vehicle she was operating, and therefore not a "qualified person" entitled to no-fault benefits (Insurance Law § 5202[b]). Given the evidence in the record indicating that the vehicle was purchased by and registered to one Melvin Cintron, and that Cintron paid for the vehicle's insurance, the contrary proof relied upon by MVAIC, primarily the assignor's EUO testimony concerning her relationship to Cintron and the vehicle, raises, rather than eliminates, triable issues of fact regarding ownership of the vehicle which can only be resolved at trial (see Gagliardi v MVAIC, 66 Misc.3d 132 [A], 2019 NY Slip Op 52083[U] [App Term, 1st Dept 2019]; Karina K. Acupuncture, P.C. v MVAIC, 55 Misc.3d 139 [A], 2017 NY Slip Op 50546[U] [App Term, 1st Dept 2017]).