Mainella v. Allstate Insurance

269 A.D.2d 365, 702 N.Y.S.2d 378, 2000 N.Y. App. Div. LEXIS 1236

Opinion

—In an action to recover damages for breach of an insurance contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated February 1, 1999, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On August 9, 1994, the plaintiff was involved in an automobile accident and began receiving first-party no-fault benefits from the defendant, her automobile liability insurer. The plaintiff was physically examined by the defendant’s physicians and her benefits were terminated in April 1995. The plaintiff then commenced this action seeking to recover for basic economic loss under Insurance Law article 51. The defendant moved for summary judgment alleging that the plaintiff was no longer disabled (see, 11 NYCRR 65.15 [g] [2] [ii]).

The defendant failed to establish its entitlement to judgment as a matter of law. In light of the conflicting medical reports submitted by the parties, triable issues of fact exist as to whether the plaintiff was disabled as a result of her automobile accident and whether she was entitled to recover for basic economic loss under the Insurance Law (see, Insurance Law § 5102; Wagner v Baird, 208 AD2d 1087; Abbey v Country-Wide Ins. Co., 177 Misc 2d 677; Hernandez v Aetna Cas. & Sur. Co., 146 Misc 2d 938). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.