Compas Med., P.C. v. United Servs. Auto. Ass'n

Full title: Compas Medical, P.C., as Assignee of Erilma Desruisseaux, Appellant, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Apr 6, 2016

2016 N.Y. Slip Op. 50559 (N.Y. App. Term 2016)

36 N.Y.S.3d 406

Opinion

2014-1792 K C

04-06-2016

Compas Medical, P.C., as Assignee of Erilma Desruisseaux, Appellant, v. United Services Automobile Association, Respondent.

WESTON, J.P., SOLOMON and ELLIOT, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 10, 2014. The order denied plaintiff's motion for summary judgment and, in effect, granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 on the ground that the insured vehicle was not involved in the accident in question. Plaintiff appeals from an order of the Civil Court entered January 10, 2014 which denied plaintiff's motion and, in effect, granted defendant's cross motion.

In support of its cross motion and in opposition to plaintiff's motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured's passenger also submitted an affidavit, in which she stated that the subject vehicle did not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that "the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff opposed defendant's cross motion only with an affirmation by its counsel, who did not assert that he possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant's cross motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur. Decision Date: April 06, 2016