April 16, 2009

Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co. (2009 NY Slip Op 50736(U))

Headnote

The relevant facts the court considered were that the defendant moved for summary judgment dismissing the complaint on the grounds that their insured and insured's vehicle were not involved in the hit-and-run accident that the plaintiff was seeking no-fault benefits for. The defendant presented affidavits from their insured and their insured's wife stating that they lived in a different city and had not been in Brooklyn in over 30 years. The plaintiff only provided an affirmation from their attorney arguing that the defendant's papers did not make a prima facie showing entitling them to summary judgment. The main issue decided was whether the defendant made a prima facie showing that their insured's vehicle was not involved in the hit-and-run accident, and if the plaintiff presented sufficient facts to demonstrate a triable issue of fact to defeat the motion for summary judgment. The holding of the case was that the defendant did make a prima facie showing that their insured's vehicle was not involved in the accident, and the plaintiff failed to present sufficient facts to demonstrate a triable issue of fact, so the Civil Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co. (2009 NY Slip Op 50736(U))

Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co. (2009 NY Slip Op 50736(U)) [*1]

Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co.

2009 NY Slip Op 50736(U) [23 Misc 3d 132(A)]

Decided on April 16, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2008-66 K C.

Mid Atlantic Medical, P.C. a/a/o ASUNCION BOBADILLA, Appellant,
against
Harleysville Worcester Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 11, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order affirmed without 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 neither its insured nor its insured’s vehicle was involved in the subject hit-and-run
accident, which allegedly occurred in Brooklyn, New York. In support of its motion, defendant annexed affidavits from its insured and its insured’s wife in which they stated that although they own a 1995 Oldsmobile, they live in Fredonia, New York and neither they nor their vehicle was involved in an accident in Brooklyn. They further stated that they are the only individuals who have access to their vehicle and that they have not been to Brooklyn in over 30 years. In opposition to the motion, plaintiff proffered only an affirmation from its attorney in which he argued that defendant’s papers did not make a prima facie showing entitling it to summary judgment. The Civil Court granted defendant’s motion, and the instant appeal by plaintiff ensued.

We find that defendant made a prima facie showing that its insured’s vehicle was not involved in the hit-and-run accident in which plaintiff’s assignor was allegedly injured. Consequently, to defeat defendant’s motion for summary judgment, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 [1979]). Since plaintiff failed to do
so, the Civil Court properly granted defendant’s motion for summary judgment dismissing the [*2]complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 2009