Cmty. Radiology Servs., PC v. MVAIC

• Decision Date: 10 November 2021
• Docket Number: 570143/21
• Parties: COMMUNITY RADIOLOGY SERVICES, PC a/a/o Lydia Rivera, Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 135 (A)

155 N.Y.S.3d 27 (Table)

COMMUNITY RADIOLOGY SERVICES, PC a/a/o Lydia Rivera, Plaintiff-Respondent,

v.MVAIC, Defendant-Appellant.

570143/21

Supreme Court, Appellate Term, New York, First Department.

Decided on November 10, 2021

Per Curiam.

Order (Denise M. Dominguez, J.), dated October 28, 2020, affirmed, without costs.

Defendant MVAIC's motion for summary judgment dismissing this first-party no-fault action was properly denied. The burden is on MVAIC to prove its "lack of coverage" defense in support of its motion for summary judgment (see e.g. Pomona Med. Diagnostic, P.C. v MVAIC , 32 Misc 3d 140[A], 2011 NY Slip Op 51573[U] [App Term, 1st Dept 2011] ). Here, MVAIC failed to demonstrate the absence of triable issues of fact as to whether assignor Lydia Rivera is the "de facto" owner of the vehicle she was operating, and therefore not a "qualified person" entitled to no-fault benefits ( Insurance Law § 5202[b] ). Given the evidence in the record indicating that the vehicle was purchased by and registered to one Melvin Cintron, and that Cintron paid for the vehicle's insurance, the contrary proof relied upon by MVAIC, primarily the assignor's EUO testimony concerning her relationship to Cintron and the vehicle, raises, rather than eliminates, triable issues of fact regarding ownership of the vehicle which can only be resolved at trial (see Gagliardi v MVAIC , 66 Misc 3d 132[A], 2019 NY Slip Op 52083[U] [App Term, 1st Dept 2019] ; Karina K. Acupuncture, P.C. v MVAIC , 55 Misc 3d 139[A], 2017 NY Slip Op 50546[U] [App Term, 1st Dept 2017] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

All concur