August 2, 2019

Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U))

Headnote

The main issue in this case was whether the insured vehicle had been involved in the alleged accident in question. The court granted the defendant's motion for summary judgment dismissing the complaint, as the insured testified in an examination under oath (EUO) that she had been parking her vehicle at the time of the alleged accident, and no accident had occurred. The EUO testimony and supporting affidavit were deemed sufficient to demonstrate that the alleged injury did not arise out of an insured incident, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion. Therefore, the court affirmed the order granting summary judgment in favor of the defendant.

Reported in New York Official Reports at Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U))

Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U)) [*1]

Parisien v Allstate Ins. Co.

2019 NY Slip Op 51249(U) [64 Misc 3d 140(A)]

Decided on August 2, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 2, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-445 K C

Jules Francois Parisien, M.D., as Assignee of Vital Abner, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin Toell of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 23, 2016. 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 alleged accident in question.

In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured, in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] 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. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], [*2]2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff opposed defendant’s motion only with an affirmation by counsel, who did not assert that he possessed personal knowledge of the facts, 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]).

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019