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Infinity Health Products, Ltd. As Assignee of Marin Ligia Castro v. American Transit Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


February 14, 2011

INFINITY HEALTH PRODUCTS, LTD. AS ASSIGNEE OF MARIN LIGIA CASTRO,
RESPONDENT,
v.
AMERICAN TRANSIT INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009.

Infinity Health Prods., Ltd. v American Tr. Ins. Co.

Decided on February 14, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that there was a lack of coverage because the injuries allegedly sustained by plaintiff's assignor did not arise out of an insured incident. The Civil Court denied both plaintiff's motion and defendant's cross motion, finding that triable issues of fact existed. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision

20110214

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