Opinion
No. 2013–940 Q C.
11-13-2015
COMPAS MEDICAL, P.C. as Assignee of Izgiya Izgiyaev, Appellant, v. HEREFORD INSURANCE CO., Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff's motion, and granted defendant's cross motion on the ground that defendant had established that plaintiff's assignor was not entitled to receive no-fault benefits from defendant since plaintiff's assignor had been injured while driving a vehicle insured by a different insurer.
In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant's counsel, purported to establish that, when the accident occurred, plaintiff's assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff's assignor was riding when the accident occurred, defendant's cross motion should have been denied (see Zuckerman v. City of New York, 49 N.Y.2d 557 1980 ).
Plaintiff's contention that its motion for summary judgment should have been granted lacks merit. As the record reflects the existence of an issue of fact as to whether, when the accident occurred, plaintiff's assignor was in the vehicle insured by defendant, plaintiff failed to establish as a matter of law that there was coverage by defendant of plaintiff's assignor's claims (see Zappone v. Home Ins. Co., 55 N.Y.2d 131, 135–136 1982 ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.