December 19, 2017

Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a provider seeking to recover assigned first-party no-fault benefits, had filed a motion for summary judgment, which was granted by the Civil Court. The defendant, an insurance company, had filed a cross motion for summary judgment to dismiss the complaint, which was denied. The main issue decided was whether the defendant's evidence was sufficient to establish that the plaintiff's assignor's alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint. The holding of the court was that the defendant's evidence was insufficient to establish this as a matter of law and that there was a triable issue of fact, so the plaintiff was not entitled to summary judgment. The court modified the order to provide that the plaintiff's motion for summary judgment was denied, with the appellate judges concurring.

Reported in New York Official Reports at Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))

Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U)) [*1]

Tyorkin v Country Wide Ins. Co.

2017 NY Slip Op 51827(U) [58 Misc 3d 137(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1204 Q C

Maxim Tyorkin, M.D., as Assignee of Ian Caby, Respondent,
against
Country Wide Insurance Company, Appellant.

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Ilona Finkelshteyn, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument on appeal, its evidence was insufficient to establish, as a matter of law, that plaintiff’s assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff is not entitled to summary judgment, as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017