Optimal Well-Being Chiropractic, P.C. v General Motors Assur. Co.

[*1] Optimal Well-Being Chiropractic, P.C. v General Motors Assur. Co. 2014 NY Slip Op 51323(U) Decided on August 20, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-685 K C

Optimal Well-Being Chiropractic, P.C. as Assignee of ADRIAN HICKEN, Respondent,

against

General Motors Assurance Company, Appellant.

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 NY2d 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 AD2d 388 [2003]; Balanca v Foschi & Sons, 302 AD2d 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 NY2d 851, 853 [1985]). Defendant's remaining contention is unpreserved for appellate review.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014