|Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.|
|2009 NY Slip Op 52601(U) [26 Misc 3d 126(A)]|
|Decided on December 15, 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard
Velasquez, J.), entered June 12, 2008. The order denied defendant's motion for summary
ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that there was a triable issue of fact as to whether the alleged accident had occurred. The sole issue raised on appeal is whether defendant made a prima facie showing that plaintiff's assignor's injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 ), such that the burden shifted to plaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 ).
In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that "the alleged injur[ies] do not arise out of an insured incident" (Central Gen. Hosp., 90 NY2d at 199). Since plaintiff failed to raise a triable issue of fact in opposition to the motion, defendant's motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 ).
Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009