Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered September 11, 2007. The order denied defendant's motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC)
moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiff's assignor was not eligible to recover first-party no-fault benefits since she could not be a "qualified person" as defined in Insurance Law § 5202 (b) due to the fact that she was allegedly injured while using or operating a motorcycle which she owned. The court denied MVAIC's motion on the ground that MVAIC failed to deny plaintiff's claims within the 30-day claim determination period. This appeal by MVAIC ensued.

Although plaintiff's assignor would be ineligible to receive first-party no-fault benefits if her injuries were sustained as a result of her use or operation of a motorcycle (see Insurance Law § 5103 [a]; see also Insurance Department Regulations [11 NYCRR] § 65-1.1 [e]), MVAIC failed to submit sufficient evidence establishing that the vehicle she was using or operating at the [*2]time of the accident was a motorcycle (see Vehicle and Traffic Law § 123). As a result, MVAIC's motion for summary judgment was properly denied, albeit on other grounds (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 2008