June 29, 2018

Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))

https://www.beynensonlaw.com/case-law/pavlova-v-allstate-ins-co-2018-ny-slip-op-51061u/

Court: Appellate Term, Second Department
Decided: June 29, 2018
Citation: 2018 NY Slip Op 51061(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Pavlova v Allstate Ins. Co., 2018 NY Slip Op 51061(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insured's EUO testimony and affidavit established that the alleged injury did not arise from an insured incident. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The insured stated that no accident occurred while the vehicle was being parked and that the provider's assignor, a pedestrian, had not been struck by the vehicle. That evidence established the insurer's prima facie lack-of-coverage defense under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider opposed the motion only with counsel's affirmation, without an assertion of personal knowledge, and therefore failed to raise a triable factual issue.

Reported in New York Official Reports at Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))

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

Ksenia Pavlova, D.O., as Assignee of Abner Vital, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damien J. Toell and Karina Barska of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered October 5, 2016. The order granted defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident in question.

In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] 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]). Since plaintiff opposed defendant’s motion only with an affirmation by counsel, who did not assert that he possessed personal knowledge of the facts, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 29, 2018

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer proved the injuries did not arise from a covered accident

Held the insured's EUO testimony and affidavit that she was parking, no accident occurred and the pedestrian assignor was not struck showed the injury did not arise from an insured incident, and counsel's affirmation raised no triable issue.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))The insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.
Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co. (2009 NY Slip Op 52379(U))The insured's unrebutted affidavit established that the insured vehicle was not involved in the accident allegedly injuring the assignor.

Similar decisions

Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51632(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial.
Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
Pavlova v Nationwide Ins. (2020 NY Slip Op 50999(U))The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted, and the provider's cross motion was denied.
Pavlova v American Ind. Ins. Co. (2018 NY Slip Op 50943(U))The provider failed to establish personal jurisdiction over a Pennsylvania insurer through counsel's unsupported affirmation.