Maxford, Inc. v Country Wide Ins. Co. (2018 NY Slip Op 50941(U))

Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Jessica Voto of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 3, 2015, deemed from a judgment of that court entered May 6, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 3, 2015 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $934.15.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing, among other things, that defendant had timely denied the claim on the ground that plaintiff’s assignor’s intoxication at the time of the accident at issue was the proximate cause of the accident. By order entered June 3, 2015, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Defendant’s appeal from the June 3, 2015 order is deemed from a judgment that was entered on May 6, 2016 pursuant to the order (see CPLR 5501 [c]).

In opposition to plaintiff’s motion, defendant raised a triable issue of fact as to whether it had timely and properly denied the claim based on the alleged intoxication of plaintiff’s assignor, who was operating the vehicle at the time of the accident at issue (see Westchester Med. Ctr. v Mapfre Ins. Co. of NY, 119 AD3d 777 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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