January 14, 2011

Pomona Med. Diagnostic v MVAIC (2011 NY Slip Op 50042(U))

Headnote

MVAIC's uncertified insurance-activity printout did not establish that the assignor was ineligible for no-fault benefits. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion, on grounds different from those used by the Civil Court. MVAIC relied on the printout to challenge the assignor's status as a qualified person under Insurance Law § 5221 (b). The printout was inadmissible hearsay and, independently, did not establish insurance coverage in effect when the accident occurred. MVAIC's submissions also failed to establish as a matter of law that the assignor had not complied with the notice-of-claim requirements of Insurance Law § 5208.

Reported in New York Official Reports at Pomona Med. Diagnostic v MVAIC (2011 NY Slip Op 50042(U))

[*1]
Pomona Med. Diagnostic v MVAIC
2011 NY Slip Op 50042(U) [30 Misc 3d 132(A)]
Decided on January 14, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
570681/10.

Pomona Medical Diagnostic a/a/o Celsa Intriago, Plaintiff-Respondent,

against

MVAIC, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered June 30, 2010, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Donald A. Miles, J.), entered June 30, 2010, affirmed, without costs.

Defendant’s motion for summary judgment dismissing the complaint was properly denied, albeit for reasons other than those stated by Civil Court. In support of its contention that plaintiff’s assignor was not a “qualified” person entitled to payment of first-party no-fault benefits by defendant (see Insurance Law § 5221[b]), defendant relied on inadmissible hearsay — an uncertified computer printout of an “insurance activity expansion” (see Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). In any event, the expansion does not establish that there was a policy of insurance in effect at the time of the accident (see generally id.; cf. Matter of Commercial Union Ins. Co. (Kim), 268 AD2d 296 [2000], lv denied 95 NY2d 762 [2000]). Defendant’s submissions are also insufficient to establish as a matter of law that plaintiff’s assignor did not comply with the notice of claim requirements (see Insurance Law § 5208).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: January 14, 2011

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