Woo Yup Kang v Mercury Cas. Co.

[*1] Woo Yup Kang v Mercury Cas. Co. 2012 NY Slip Op 51821(U) Decided on September 13, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2335 Q C.

Dr. Woo Yup Kang, D.C. as Assignee of MIGUEL RAMIREZ, Appellant,

against

Mercury Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered August 16, 2010. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered August 20, 2010, pursuant to the order, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered August 16, 2010 as granted defendant's motion for summary judgment dismissing the complaint is vacated, and defendant's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the record reveals that defendant denied plaintiff's claims on the ground that plaintiff's assignor had been operating his motor vehicle while in an intoxicated condition at the time of the accident. The parties made reciprocal summary judgment motions, which the Civil Court consolidated for purposes of disposition. By order entered August 16, 2010, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, finding that defendant had established [*2]that plaintiff's assignor had been intoxicated at the time of the accident and that such intoxication had proximately caused the accident, and implicitly denied plaintiff's motion for summary judgment. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant's motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In order to establish a prima facie entitlement to summary judgment dismissing the complaint due to plaintiff's assignor's intoxication, defendant was required to show that plaintiff's assignor had been "injured as a result of operating a motor vehicle while in an intoxicated condition" (Insurance Law § 5103 [b] [2]; Vehicle and Traffic Law § 1192 [2], [3]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 [2010]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). Upon a review of the record, we find that defendant was not entitled to summary judgment as it failed to tender sufficient proof in admissible form to establish as a matter of law plaintiff's assignor's intoxication at the time of the accident (see generally Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014; Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769 [2000]; LaDuke v State Farm Ins. Co., 158 AD2d 137 [1990]).

Accordingly, the judgment is reversed, so much of the order entered August 16, 2010 as granted defendant's motion for summary judgment dismissing the complaint is vacated, and defendant's motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: September 13, 2012