Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was ineligible to collect first-party no-fault benefits because he was operating a motorcycle at the time of the accident. In support of the motion, defendant submitted the transcript of plaintiff’s assignor’s examination under oath (EUO) in which he interchangeably referred to the motor vehicle he was operating at the time of the accident as a “moped” or “motorcycle.” He testified that the vehicle had a seat and a floorboard, but did not have pedals, and that the maximum speed of the vehicle was more than 40 miles per hour. Plaintiff’s assignor admitted that he did not have a driver’s license and that he had no insurance for the vehicle. Defendant also submitted a copy of the relevant insurance policy issued to the other individual involved in the accident, which policy stated that persons occupying a “[m]otorcycle, moped or similar-type vehicle” are not entitled to first-party benefits coverage. Plaintiff opposed the motion, arguing that the EUO transcript was inadmissible because it was not signed by the assignor and that, in any event, the vehicle that plaintiff’s assignor was driving did not qualify as a motorcycle under the Insurance Law. In an order dated August 15, 2024, the Civil Court (Robert J. Helbock, J.) granted defendant’s motion.

Contrary to plaintiff’s contention, the certified EUO transcript was admissible, even though it was not signed by plaintiff’s assignor (see American States Ins. Co. v Huff, 119 AD3d 478, 479 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Compas Med., P.C. v ELRAC, Inc., 47 Misc 3d 143[A], 2015 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Pursuant to Insurance Law § 5102 (j), a ” ‘[c]overed person’ means any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits.” Insurance Law § 5102 (f) specifically excludes motorcycles from the definition of a motor vehicle (see Insurance Law § 5102 [m]), and, thus, occupants of a motorcycle are not entitled to first-party no-fault benefits in New York (see Insurance Law § 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Jung v Glover, 169 AD3d 782, 784 [2019]; Boyson v Kwasowsky, 129 AD3d 151, 152, 154 [2015]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 228 [2011]; Carbone v Visco, 115 AD2d 948 [1985]).

“A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added])” (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228). To the extent that plaintiff argues that the vehicle operated by plaintiff’s assignor did not qualify as a motorcycle required to carry financial security, we disagree. Upon a review of plaintiff’s assignor’s EUO testimony, we find that the vehicle plaintiff’s assignor was operating at the time of the accident was a motorcycle, as defined in Insurance Law § 5102 (m), because the vehicle had a seat, was operated using gas and electricity, and clearly had three or less wheels, given plaintiff’s assignor’s description of the vehicle as a “moped,” or “motorcycle” (see Vehicle and Traffic Law §§ 123, 125). Further, plaintiff’s assignor’s testimony regarding the speed of the vehicle demonstrates that the vehicle was required to carry financial security, as he testified that the vehicle had a maximum speed of more than 40 miles per hour (see Vehicle and Traffic Law §§ 121-b, 125, 311 [2]; 312 [1] [a]; 2265 [3]). Consequently, defendant met its prima facie burden of establishing that plaintiff’s assignor was ineligible to collect no-fault benefits under the insurance policy issued to the other individual involved in the accident (see Insurance Law §§ 5102 [j], [m]; 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228-229), and plaintiff failed to raise a triable issue of fact in opposition.

As defendant established that the accident was not a covered incident (see Insurance Law § 5102 [j]; Jung v Glover, 169 AD3d at 784), we need not pass upon plaintiff’s contention that the claim was not timely denied, as a defense of lack of coverage is not precluded even in the absence of a timely denial (see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.