Superior Med. Rehab, PC v MVAIC

[*1] Superior Med. Rehab, PC v MVAIC 2015 NY Slip Op 51003(U) Decided on July 7, 2015 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570018/15

Superior Medical Rehab, PC a/a/o Luis Jadan, Plaintiff-Respondent, -

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered August 22, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ruben Franco, J.), entered August 22, 2014, affirmed, with $10 costs.

We sustain the denial of defendant MVAIC's motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons different than those stated by Civil Court. Even assuming, without deciding, that plaintiff's assignor was required to comply with Insurance Law § 5218(b)(5) and make "all reasonable efforts . . . to ascertain" the identity of the driver and/or owner of the taxi in which he was a passenger when the accident occurred, the proof submitted by defendant MVAIC failed to establish as a matter of law that the assignor failed to make such reasonable efforts (see Matter of Carter v Motor Veh. Acc. Indem. Corp., 49 AD3d 1169 [2008]; Matter of O'Rourke v Motor Veh. Acc. Indem. Corp., 29 AD2d 938 [1968]). The limited proof submitted by MVAIC, including the assignor's terse affidavit, in which he stated, inter alia, that the driver of the taxi "stayed at the scene when the police and the ambulance arrived [and] I was taken to Elmhurst Hospital," and the (largely illegible) ambulance report, was essentially silent on the issue. MVAIC merely pointed to gaps in the plaintiff's proof instead of carrying its burden on the motion (see Torres v Merrill Lynch Purch., 95 AD3d 741 [2012]).

Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: July 07, 2015