November 22, 2004

Lynch v Progressive Ins. Co. (2004 NY Slip Op 08661)

Headnote

The court considered whether the plaintiff was entitled to recover unpaid no-fault insurance benefits. The main issues were whether the plaintiff was intoxicated at the time of the accident within the meaning of the no-fault insurance law, and whether his intoxication was a proximate cause of the accident. The court held that there were issues of fact regarding the plaintiff's intoxication that precluded granting the defendant's cross motion for summary judgment dismissing the complaint. As a result, the court modified the order to deny the cross motion and reinstate the complaint, and affirmed with costs payable to the plaintiff. The plaintiff's remaining contentions were deemed without merit by the court.

Reported in New York Official Reports at Lynch v Progressive Ins. Co. (2004 NY Slip Op 08661)

Lynch v Progressive Ins. Co.

2004 NY Slip Op 08661 [12 AD3d 570]

November 22, 2004

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 19, 2005

Michael J. Lynch, Appellant,
v
Progressive Insurance Company, Respondent.

—[*1]In an action to recover unpaid no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 7, 2003, which denied his motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs payable to the plaintiff, and the complaint is reinstated.

There are issues of fact which precluded the granting of the defendant’s cross motion for summary judgment dismissing the complaint (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), including whether the plaintiff was intoxicated at the time of the accident within the meaning of the no-fault insurance law (see Insurance Law § 5103 [b] [2]; Vehicle and Traffic Law § 1192 [2], [3]), and whether his intoxication was a proximate cause of the accident (see Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]).

The plaintiff’s remaining contentions are without merit. Prudenti, P.J., Ritter, H. Miller and Spolzino, JJ., concur.