Sure Way NY, Inc. v. Travelers Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 2019
• Docket: 2019 NYSlipOp 50601(U)
• Status: Published

Opinion

Sure Way NY, Inc., as Assignee of Dixin, Marla, Appellant,

against

Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Duane Frankson of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 17, 2016. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order 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 plaintiff's assignor does not qualify as an eligible injured person, as the assignor was not a "family member" of the insured as defined in the Florida insurance policy at issue. Plaintiff cross-moved for summary judgment, asserting that, at a minimum, it had established its prima facie case. By order entered May 17, 2016, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

Upon the record presented, we find that defendant sufficiently established that plaintiff's assignor did not reside in the household of the Florida policyholder, but, rather, in Brooklyn, and thus was not a "family member" of the insured as defined by the insurance policy at issue. In opposition, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant's motion for summary judgment dismissing the [*2]complaint was properly granted.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 15, 2019