June 29, 2018

Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))

Headnote

The court considered a case in which a medical provider was attempting to recover no-fault benefits from an insurance company after an alleged accident. The insurance company had moved for summary judgment to dismiss the complaint, arguing that the insured vehicle was not involved in the accident. The court considered the transcript of the examination under oath of the insured, where she testified that no accident had occurred and that the plaintiff's assignor, a pedestrian, had not been struck by her vehicle. The court found that this was sufficient evidence to demonstrate that the alleged injury did not arise out of an insured incident, and as the plaintiff had failed to raise a triable issue of fact in opposition to the motion, the order granting the insurance company's motion for summary judgment was affirmed.

Reported in New York Official Reports at Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))

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

Ksenia Pavlova, D.O., as Assignee of Abner Vital, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damien J. Toell and Karina Barska 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 Montelione, J.), entered October 5, 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], 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: June 29, 2018