Opinion
No. 2023-1058 K C
07-26-2024
Longevity Medical Supply, Inc., as Assignee of Carr, Durand, Respondent, v. MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D'Esposito of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).
Unpublished Opinion
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D'Esposito of counsel), for appellant.
The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).
PRESENT:: MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, PHILLIP HOM, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated August 10, 2023. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court (Jill R. Epstein, J.) dated August 10, 2023 as denied defendant's motion for summary judgment dismissing the complaint.
In support of its motion for summary judgment dismissing the complaint, MVAIC made a prima facie showing that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202 [b]), as the assignor was an owner of the vehicle he was operating at the time of the accident (see Vehicle and Traffic Law § 128; Insurance Law §§ 5102 [e]; 5202 [b]; American States Ins. Co. v Huff, 119 A.D.3d 478 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc.3d 147[A], 2015 NY Slip Op 50756[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff's assignor was not eligible to be deemed to be a "covered person" (Insurance Law § 5221 [b] [2]) who would be entitled to recover no-fault benefits from MVAIC. In opposition, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; see also Maiga Prods. Corp. v MVAIC, 68 Misc.3d 131 [A], 2020 NY Slip Op 50993[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As a result, MVAIC's motion for summary judgment dismissing the complaint should have been granted.
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
MUNDY, J.P., TOUSSAINT and HOM, JJ., concur.