Charles Deng Acupuncture, P.C. v. Hertz Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 31, 2020
• Docket: 2020 NYSlipOp 50182(U)
• Status: Published

Opinion

Charles Deng Acupuncture, P.C., as Assignee of Davis-Vaughan, Felecia, Respondent,

against

Hertz Co., Appellant.

Robyn M. Brilliant, P.C. (Robyn M. Brilliant and Barry Montrose of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered January 24, 2018. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and, upon denying plaintiff's cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff's favor.

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, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage due to the fact that the assignor, a resident of New York, was not an eligible injured person since she had been a passenger in a rental car which had been involved in a motor vehicle accident in New Jersey and neither the assignor, nor any member of her household, owned a vehicle in New York. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court dated January 24, 2018 as denied defendant's motion and, upon denying plaintiff's cross motion, made, in effect, CPLR 3212 (g) findings in plaintiff's favor.

The papers that defendant submitted in support of its motion failed to establish, as a matter of law, that the assignor was not entitled to receive benefits pursuant to Insurance Law § 5103 (a) (3) and, therefore, the Civil Court properly denied defendant's motion for summary judgment.

Moreover, defendant failed to articulate a sufficient basis to strike the Civil Court's findings in plaintiff's favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is affirmed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 31, 2020