Opinion
2017-9 K C
04-15-2019
SURE WAY NY, INC., as Assignee of Dixin, Marla, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Duane Frankson of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant.
Law Offices of Aloy O. Ibuzor (Duane Frankson of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the order is affirmed, with $ 25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor does not qualify as an eligible injured person, as the assignor was not a "family member" of the insured as defined in the Florida insurance policy at issue. Plaintiff cross-moved for summary judgment, asserting that, at a minimum, it had established its prima facie case. By order entered May 17, 2016, the Civil Court granted defendant's motion and denied plaintiff's cross motion.
Upon the record presented, we find that defendant sufficiently established that plaintiff's assignor did not reside in the household of the Florida policyholder, but, rather, in Brooklyn, and thus was not a "family member" of the insured as defined by the insurance policy at issue. In opposition, plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York , 49 NY2d 557 [1980] ). Consequently, defendant's motion for summary judgment dismissing the complaint was properly granted.
Accordingly, the order is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.