Utica Natl. Ins. Co. of Tex. v Clennan (2014 NY Slip Op 50806(U))

Decided on May 7, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), dated May 23, 2013. The order, insofar as appealed from and as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment to the extent of granting plaintiff summary judgment on the issue of liability.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this subrogation action to recover the sum of $3,042.26, the amount it had paid its insured for damage to her vehicle after the bicycle which defendant had been operating allegedly struck and damaged her vehicle, which was legally parked on the street in front of her residence. Plaintiff alleged in its complaint that the occurrence had been caused by defendant’s negligence, without any negligence on the part of the subrogor. Defendant, in his verified answer, generally denied the allegations of the complaint, but admitted that, on the date in question, he had been operating his bicycle on the street where the subrogor’s residence was located. In addition, he interposed a counterclaim seeking no-fault benefits due as a result of the accident, alleging that “[o]n or about June 8, 2011, Plaintiff [sic], then on a bicycle, collided with the vehicle owned by Plaintiff’s assignor [sic]”; that the cause of the accident was how the vehicle was parked; and that, as a result of the accident, he had suffered, among other things, physical injury. He also stated that he had submitted to plaintiff medical bills for his treatment, and that plaintiff had denied payment. Plaintiff, as an affirmative defense to the counterclaim, stated that no-fault benefits were properly denied because the accident had not arisen out of the subrogor’s “use or operation of a motor vehicle.”

Thereafter, plaintiff moved for, among other things, an order granting it summary judgment, setting the matter down for an inquest as against defendant, and dismissing defendant’s counterclaim. Defendant cross-moved for summary judgment dismissing the complaint. The District Court, in an order dated May 23, 2013, found that the evidence submitted by plaintiff established a prima facie case with respect to defendant’s liability, and that defendant had failed to demonstrate that there was a genuine factual issue as to liability. Consequently, summary judgment was granted to plaintiff on the issue of liability. Since defendant had raised an issue of fact as to the amount of damages sustained by the subrogor’s vehicle as a result of the collision, the court ordered a trial of damages, in accordance with CPLR 3212 (c). Judgment was granted to plaintiff dismissing defendant’s counterclaim, as it was undisputed that the subrogor’s vehicle had been parked at the time of the collision and, therefore, defendant’s injuries did not result from the “use and operation of a motor [*2]vehicle” (Insurance Law § 5102 [b]). Defendant appeals, as limited by the brief, from so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on the issue of liability. We affirm.

Plaintiff established its prima facie entitlement to summary judgment on the issue of liability by submitting evidence demonstrating that defendant’s bicycle struck its subrogor’s legally parked vehicle. Such evidence included: defendant’s verified answer with counterclaim, in which he stated that on the date in question, he “then on a bicycle, collided with the vehicle owned by Plaintiff’s assignor [sic]”; defendant’s application for no-fault benefits (an NF-2 form), signed by defendant, in which he stated, in the space left for a description of the accident that, at the time and place of the accident, “bicycle hit parked car”; and the affidavit of its subrogor stating that she had parked her vehicle directly in front of the entrance to her residence the afternoon before the incident, that she had locked the vehicle, that no one had used the vehicle, and that the following morning, she had seen that it had been damaged. In opposition, defendant failed to submit competent evidence to rebut the inference of negligence by offering a non-negligent explanation for the contact with a stationary motor vehicle. Defendant’s argument that there was no admissible proof of a collision between him and the subrogor’s vehicle is refuted by the submissions referred to above.

Accordingly, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Marano and Garguilo, JJ., concur.