Opinion
No. 2011–59 K C.
2013-02-8
JESA MEDICAL SUPPLY, INC. as Assignee of Margaret Heck, Appellant, v. NYC TRANSIT AUTHORITY, Respondent.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.
In support of its cross motion for summary judgment dismissing the complaint, defendant NYC Transit Authority (N.Y.CTA) submitted an affidavit from its claims examiner, who stated that it is NYCTA's business practice to maintain a log of all people injured or involved in a motor vehicle accident involving a NYCTA vehicle. Since the only information that had been provided to defendant was the date on which plaintiff's assignor had allegedly been injured while a passenger on defendant's bus, defendant's claims examiner had searched defendant's records and found that there was no record indicating that plaintiff's assignor had been injured as a passenger, or otherwise, by a NYCTA vehicle on the date of the alleged accident or even that she was at the scene of an accident involving a NYCTA vehicle on the date in question. As a result, defendant established its prima facie entitlement to summary judgment. Consequently, to defeat defendant's cross motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact ( see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979] ). Since plaintiff failed to do so, the Civil Court properly granted defendant's cross motion ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980];see also Midwood Med. Equip. & Supply, Inc. v. USAA Cas. Ins. Co., 25 Misc.3d 139[A], 2009 N.Y. Slip Op 52379[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Mid Atl. Med., P.C. v. Harleysville Worcester Ins. Co., 23 Misc.3d 132[A], 2009 N.Y. Slip Op 50736 [U] [App Term, 2d, 11th & 13th Jud Dists 2009] ).
Accordingly, the order, insofar as appealed from, is affirmed.