December 3, 2021

Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co. (2021 NY Slip Op 51170(U))

Headnote

The relevant facts of the case included a provider seeking to recover assigned first-party no-fault benefits, and the defendant moving for summary judgment to dismiss the complaint on the grounds that the plaintiff's assignor was not a passenger in the defendant's insured's car when the accident occurred. The main issue decided was whether the defendant's moving papers established, prima facie, that the plaintiff's assignor was not a passenger in the defendant's insured's vehicle when the accident occurred. The holding of the case was that the defendant's moving papers did not establish, prima facie, that the plaintiff's assignor was not a passenger in the defendant's insured's vehicle, and therefore the denial of the defendant's motion for summary judgment to dismiss the complaint was required. As a result, the order denying the defendant's motion was affirmed.

Reported in New York Official Reports at Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co. (2021 NY Slip Op 51170(U))

Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co. (2021 NY Slip Op 51170(U)) [*1]

Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co.

2021 NY Slip Op 51170(U) [73 Misc 3d 139(A)]

Decided on December 3, 2021

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-182 K C

Forest Hills Healthcare Physician, P.C., as Assignee of Brandy Robinson, Respondent,
against
Lancer Ins. Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 5, 2019. The order denied 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not a passenger in defendant’s insured’s car when the accident occurred. The Civil Court denied defendant’s motion.

While defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor’s alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s moving papers contain a copy of plaintiff’s assignor’s sworn application for no-fault benefits in which plaintiff’s assignor swore that she was passenger in defendant’s insured’s vehicle when the accident occurred. In addition, although defendant’s moving papers contain a statement by defendant’s attorney that plaintiff’s assignor appeared for an examination under oath, what transpired at the [*2]examination under oath is not set forth. As such, contrary to defendant’s contention, defendant’s moving papers do not establish, prima facie, that plaintiff’s assignor was not a passenger in defendant’s insured’s vehicle when the accident occurred (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) and, as a result, denial of defendant’s motion was required regardless of the sufficiency of plaintiff’s opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: December 3, 2021