Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated February 24, 2011.
Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co.
Decided on April 10, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: MOLIA, J.P., NICOLAI and LaCAVA, JJ
The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff's motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).
However, the District Court should have denied defendant's cross motion for summary judgment dismissing the complaint as well. Defendant failed to submit any evidence from which the circumstances of the accident could be ascertained, and its proof was therefore insufficient to demonstrate that plaintiff's assignor's alleged intoxicated condition was a proximate cause of the accident (see Insurance Law § 5103 [b] ; Insurance Department Regulations [11 NYCRR] § 65-3.14 [b] ; Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 ; Lynch v Progressive Ins. Co., 12 AD3d 570 ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
Molia, J.P., Nicolai and LaCava, JJ., concur. Decision