Jesa Med. Supply, Inc. v NYC Tr. Auth. (2013 NY Slip Op 50188(U))

Jesa Med. Supply, Inc. v NYC Tr. Auth.

2013 NY Slip Op 50188(U) [38 Misc 3d 138(A)]

Decided on February 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Jesa Medical Supply, Inc. as Assignee of MARGARET HECK, Appellant, —

against

NYC Transit Authority, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment dismissing the complaint, defendant NYC Transit Authority (NYCTA) submitted an affidavit from its claims examiner, who stated that it is NYCTA's business practice to maintain a log of all people injured or involved in a motor vehicle accident involving a NYCTA vehicle. Since the only information that had been provided to defendant was the date on which plaintiff's assignor had allegedly been injured while a passenger on defendant's bus, defendant's claims examiner had searched defendant's records and found that there was no record indicating that plaintiff's assignor had been injured as a [*2]passenger, or otherwise, by a NYCTA vehicle on the date of the alleged accident or even that she was at the scene of an accident involving a NYCTA vehicle on the date in question. As a result, defendant established its prima facie entitlement to summary judgment. Consequently, to defeat defendant's cross motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 [1979]). Since plaintiff failed to do so, the Civil Court properly granted defendant's cross motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).