Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 3, 2024. The order granted defendant's motion for summary judgment dismissing the complaint and implicitly denied, as moot, plaintiff's cross-motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff's cross-motion for summary judgment.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Odessa Kennedy, J.) entered December 3, 2024 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint, and implicitly denying, as moot, plaintiff's cross-motion for summary judgment.

In support of its motion for summary judgment, MVAIC asserted that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202 [b]) because, under Vehicle and Traffic Law § 128, he was deemed to be an "owner" of the vehicle (see Insurance Law § 5102 [e]). Vehicle and Traffic Law § 128 provides that an "owner" is

"A person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a [*2]motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days."

Here, MVAIC's motion failed to make a prima facie showing that plaintiff's assignor had the exclusive use of the vehicle, either as a bailee or as a lessee, for a period greater than 30 days, or that he was entitled to the use and possession of the vehicle that was subject to a security interest in another person (see Vehicle and Traffic Law § 128; UCC 1-201 [b] [35]). Consequently, the Civil Court improperly deemed plaintiff's assignor to be an "owner" of the vehicle and, thus, defendant's motion should have been denied, as MVAIC failed to establish that the assignor was not a "qualified person" (see Vehicle and Traffic Law § 128; Insurance Law §§ 5102 [e]; 5202 [b]).

As the Civil Court implicitly denied plaintiff's cross-motion for summary judgment as moot, in view of the foregoing, the matter must be remitted to the Civil Court for a determination of plaintiff's cross-motion.

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff's cross-motion for summary judgment.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.