July 3, 2006

State Farm Mut. Auto. Ins. Co. v Crete Carrier Corp. (2006 NY Slip Op 51297(U))

Headnote

The relevant facts considered by the court were that the plaintiff was seeking to recover excess no-fault benefits paid on behalf of its insured due to a motor vehicle accident caused by the defendant's truck driver. The main issue decided was whether the defendant's negligence in the operation of the truck was established, and whether the plaintiff was entitled to summary judgment on the issue of liability to recover the excess no-fault benefits. The court held that the plaintiff met its initial burden in establishing the defendant's negligence through an affidavit by its insured, and the burden shifted to the defendants to raise any triable issue. Since the defendants failed to provide an affidavit from the driver and did not raise any triable issue, the court found it an established fact that the accident was solely caused by the defendant's culpable conduct. However, the plaintiff was not entitled to summary judgment on the issue of liability due to triable issues of fact regarding a release executed by the insured in favor of the defendants.

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Crete Carrier Corp. (2006 NY Slip Op 51297(U))

State Farm Mut. Auto. Ins. Co. v Crete Carrier Corp. (2006 NY Slip Op 51297(U)) [*1]

State Farm Mut. Auto. Ins. Co. v Crete Carrier Corp.

2006 NY Slip Op 51297(U) [12 Misc 3d 138(A)]

Decided on July 3, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1895 S C.

State Farm Mutual Automobile Insurance Company a/s/o LORRAINE GREENE, Appellant,
against
Crete Carrier Corp. and RONNIE LEE NELSON, Respondents.

Appeal from an order of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered November 2, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson; as so modified, affirmed without costs.

In this action by a subrogee to recover excess no-fault benefits paid on behalf of its insured, plaintiff, in moving for summary judgment, submitted an affidavit by its insured wherein she stated that her vehicle was legally stopped when defendant Ronnie Lee Nelson, the driver of the corporate defendant’s truck, backed the truck into her vehicle. Plaintiff thus met its initial burden on the motion with respect to the issue of defendant Nelson’s negligence in the operation of the truck, thereby shifting the burden to defendants as to said issue (see Vehicle and Traffic Law § 1121 [a]; see also Garcia v Verizon N.Y., Inc., 10 AD3d 339, 340 [2004]; Pressner v Serrano, 260 AD2d 458, 459 [1999]). Defendants’ opposition papers, which did not include an affidavit from defendant Nelson, failed to raise any triable issue of fact with respect to the issue [*2]of Nelson’s negligence. Accordingly, we deem it an established fact for all purposes in this action that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson (CPLR 3212 [g]). However, plaintiff is not entitled to summary judgment generally on the issue of liability with respect to its claim to recover excess no-fault benefits because there are triable issues of fact with respect to a[*3]release executed by plaintiff’s insured in favor of defendants (see generally Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383 [1984]; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086 [2005]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 3, 2006