Compas Med., P.C. v. United Servs. Auto. Assn.

Appellate Terms of the Supreme Court of New York

Compas Med., P.C. v. United Servs. Auto. Assn.

Appellate Terms of the Supreme Court of New York·Decided May 25, 2018·No. 2018 NYSlipOp 50764(U)·Published

Opinion

Compas Medical, P.C., as Assignee of Erilma Desruisseaux, Appellant,

against

United Services Automobile Association, Respondent.

The Rybak Firm, PLLC (Oleg Rybak and Damin J. Toell of counsel), for appellant. Law Office of Jeena R. Belil, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 30, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the accident in question.

In support of its motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured's passenger also submitted an affidavit, in which she stated that the insured vehicle had not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that "the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. [*2]Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff opposed defendant's motion with only an affirmation by its counsel, who did not assert that he possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant's motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018

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Compas Medical, P.C., as Assignee of Erilma Desruisseaux, Appellant,

against

United Services Automobile Association, Respondent.

The Rybak Firm, PLLC (Oleg Rybak and Damin J. Toell of counsel), for appellant. Law Office of Jeena R. Belil, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 30, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the accident in question.

In support of its motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured's passenger also submitted an affidavit, in which she stated that the insured vehicle had not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that "the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. [*2]Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff opposed defendant's motion with only an affirmation by its counsel, who did not assert that he possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant's motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018

Compas Med., P.C. v. United Servs. Auto. Assn., (N.Y. Ct. App. 2018).

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