Big Apple Ortho Prods., Inc. v State Farm Mut. Auto. Ins. Co.

[*1] Big Apple Ortho Prods., Inc. v State Farm Mut. Auto. Ins. Co. 2016 NY Slip Op 50768(U) Decided on March 22, 2016 Civil Court Of The City Of New York, Kings County Cohen, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2016
Civil Court of the City of New York, Kings County

Big Apple Ortho Products, Inc. as Assignee of Searles, Peter S., Plaintiff,

against

State Farm Mutual Automobile Ins. Co., Defendant.



CV-037717-13/KI
Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion: Papers Numbered

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Replying Affidavits

Exhibits

Other

Upon review of the foregoing papers, defendant's motion for summary judgment is decided as follows:

In this action to recover assigned first-party no-fault benefits, defendant denied plaintiff's claim for benefits on the basis that New York State no-fault law does not apply because the accident occurred in Georgia. Pursuant to 11 NYCRR § 65-1.1(j), New York State no fault coverage does not apply to personal injury sustained by:

any New York State resident other than the named insured or relative injured through the use or operation of the insured motor vehicle outside of New York State if such resident is the owner or a relative of the owner of a motor vehicle insured under another policy providing the coverage required by the New York Comprehensive Motor Vehicle Insurance Reparations Act.

According to the Affidavit of Lynn Johnson, a claims representative employed by defendant in its Atlanta, Georgia office, plaintiff's assignor, Peter Searles, was a passenger is a car insured by defendant. Ms. Johnson's affidavit refers to a police report, annexed to the motion papers, which [*2]purports to show that the accident occurred in Georgia. However, the police report is unsworn and uncertified, and is therefore inadmissible (Pavane v Marte, 109 AD3d 970, 971 [2d Dept 2013]; Cheul Soo Kang v Violante, 60 AD3d 991, 991-92 [2d Dept 2009]). Furthermore, defendant does not establish whether or not the assignor is a New York State resident, or if he is the "owner or a relative of the owner of a motor vehicle insured under another policy providing the coverage required by the New York Comprehensive Motor Vehicle Insurance Reparations Act," as required by 11 NYCRR § 65-1.1(j).

For the reasons stated above, defendant's motion for summary judgment is denied without prejudice.

This constitutes the decision and order of the court.

Date: March 22, 2016

DEVIN P. COHEN

Acting Justice, Supreme Court