May 25, 2017
Valentin Avanesov, Physician PC v Travelers Prop. Cas. Co. of Am. (2017 NY Slip Op 50674(U))
https://www.beynensonlaw.com/case-law/valentin-avanesov-physician-pc-v-travelers-prop-cas-co-of-am-2017-ny-slip-op-50674u/
- Court
- Appellate Term, First Department
- Decided
- May 25, 2017
- Citation
- 2017 NY Slip Op 50674(U) ยท 55 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- No covered accident (founded belief) (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Valentin Avanesov, Physician PC v Travelers Prop. Cas. Co. of Am. (2017 NY Slip Op 50674(U))
[*1]| Valentin Avanesov, Physician PC v Travelers Prop. Cas. Co. of Am. |
| 2017 NY Slip Op 50674(U) [55 Misc 3d 145(A)] |
| Decided on May 25, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
570794/16
against
Travelers Property Casualty Company of America, Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered April 15, 2015, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
Per Curiam.
Order (Gerald Lebovits, J.), entered April 15, 2015, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs.
Defendant-insurer moved for summary judgment dismissing this first-party no-fault action on the ground that its insured was not involved in the underlying motor vehicle accident in which plaintiff’s assignor was allegedly injured. Although defendant submitted a perfunctory affidavit of the insured, containing a conclusory allegation that he was “not involved in a motor vehicle accident involving a pedestrian” on the date at issue, defendant also submitted the insured’s detailed unsworn statement indicating that the insured was present at the scene and making a left turn with his vehicle, when “the next thing [he] kn[e]w, the person was on the floor” in front of his vehicle. In addition, the EUO testimony of the assignor indicated that on the date, time and location at issue, she was struck by a vehicle while crossing an intersection.
All of the evidence submitted on a motion for summary judgment is construed in the light most favorable to the opponent of the motion (see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]). Further, in opposition to such motion for summary judgment, a court can consider hearsay evidence, as long as it does not become the sole basis for the court’s determination (see Matter of New York City Asbestos Litig., 7 AD3d 285, 285 [2004]). Applying these principles, the record evidence including the insured’s unsworn statement submitted by defendant (see People v Greenberg, 95 AD3d 474, 483-484 [2012], affd 21 NY3d 439 [2013]), raises triable issues as to whether the insured was involved in the subject accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 25, 2017
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried
Reversed summary judgment for the insurer because the insured's own detailed unsworn statement and the assignor's EUO testimony raised triable issues as to whether the insured vehicle was involved in the accident.
Of the 25 decisions on this question in the First Department courts and the Court of Appeals, 5 (this one included) are in the same category.
Similar decisions
- Valdan Acupuncture, P.C. v 21st Century Advantage Ins. Co. (2019 NY Slip Op 50822(U))An insurer may submit reply evidence responding to an IME-address objection first raised in opposition to summary judgment.
- PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
- Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51247(U))The insurer established that its policy did not cover the vehicle driven by the assignor at the time of the accident.
- Shur v Unitrin Advantage Ins. Co. (2017 NY Slip Op 51011(U))The insurer's contradictory IME report failed to establish that the assignor's knee injury lacked a causal connection to the accident.
- Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U))The insurer established that the alleged injury did not arise from an insured incident through its insured's EUO testimony and affidavit.