Opinion
No. 2013–685KC.
2014-08-20
OPTIMAL WELL–BEING CHIROPRACTIC, P.C. as Assignee of Adrian Hicken, Respondent, v. GENERAL MOTORS ASSURANCE COMPANY, Appellant.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 20, 2012. The order denied 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, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint on the ground of lack of coverage.
In support of its motion, defendant's investigator stated that, based on the vehicle identification number set forth in the police report of the accident in question, the vehicle at issue was not a covered vehicle under the applicable policy. However, the recitation of the vehicle identification number was inconsistent throughout the papers submitted in support of defendant's motion, thus raising a question of fact as to whether the vehicle was not covered under the applicable insurance policy. In view of defendant's conflicting evidentiary submissions, defendant failed to eliminate all triable issues of fact ( see Alvarez v. Prospect Hosp ., 68 N.Y.2d 320 [1986]; see generally Nocella v. Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2012]; Millennium Med. Diagnostics v. Liberty Mut. Ins. Co., 306 A.D.2d 388 [2003]; Balanca v. Foschi & Sons, 302 A.D.2d 416 [2003] ). Consequently, defendant's motion was properly denied, regardless of the sufficiency of plaintiff's papers in opposition ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). Defendant's remaining contention is unpreserved for appellate review.
Accordingly, the order is affirmed.