December 20, 2019

Gagliardi v MVAIC (2019 NY Slip Op 52083(U))

Headnote

MVAIC's conflicting vehicle-ownership evidence failed to eliminate triable issues on its lack-of-coverage defense. MVAIC sought summary judgment dismissing the provider's first-party no-fault action, contending that the assignor owned the uninsured vehicle and therefore was not a qualified person under Insurance Law § 5202 (b). Its own proof, however, tended to show that the assignor was neither the registered owner nor the title holder and that the vehicle was registered to someone else. The Appellate Term, First Department, affirmed denial of MVAIC's motion because MVAIC bore the burden of proving its defense and had not eliminated the factual dispute.

Reported in New York Official Reports at Gagliardi v MVAIC (2019 NY Slip Op 52083(U))

[*1]
Gagliardi v MVAIC
2019 NY Slip Op 52083(U) [66 Misc 3d 132(A)]
Decided on December 20, 2019
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 20, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Edmead, J.
570353/19

Anthony Gagliardi, D.C. a/a/o Ronnie Springer, Plaintiff-Respondent,

against

MVAIC, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Denise M. Dominguez, J.), entered August 27, 2018, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Denise M. Dominguez, J.), entered August 27, 2018, 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 eliminate all triable issues concerning coverage since its own proof contains conflicting evidence about the ownership of the vehicle (see Karina K. Acupuncture, P.C. v MVAIC, 55 Misc 3d 139[A], 2017 NY Slip Op 50546[U] [App Term, 1st Dept 2017]; VS Care Acupuncture, PC v MVAIC, 51 Misc 3d 147[A], 2016 NY Slip Op 50764[U] [App Term, 1st Dept 2016]). Specifically, although MVAIC contends that the assignor Ronnie Springer was the owner of the uninsured vehicle, and therefore not a “qualified person” (Insurance Law § 5202[b]), evidence in the record tends to indicate that the assignor was neither the registered owner nor title holder of the vehicle, and that the vehicle was registered to one Melanie Gamble.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur
Decision Date: December 20, 2019

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