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Devonshire Surgical Facilities v New York City Tr. Auth.
2007 NY Slip Op 50345(U) [14 Misc 3d 140(A)]
Decided on March 5, 2007
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, J.P., McCOOE, DAVIS, JJ
570542/06.

Devonshire Surgical Facilities and Carnegie Hill Orthopedic Services, P.C.,a/a/o Ivory West, Plaintiffs-Respondents,

against

New York City Transit Authority, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated February 2, 2006, which granted plaintiffs' motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint. PER CURIAM:


Order (Barbara Jaffe, J.), dated February 2, 2006, modified to deny plaintiffs' motion for summary judgment, and as modified, affirmed, with $10 costs.

Defendant's opposition papers, including the personal affidavits of its bus dispatcher and a driver assigned to the route here in question, were sufficient to raise a triable issue as to whether its denial of coverage was "premised on the fact or founded belief that the alleged injury [did] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).
This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: March 5, 2007