Gagliardi v. MVAIC, 570353/19

• Decision Date: 20 December 2019
• Docket Number: 570353/19
• Parties: Anthony GAGLIARDI, D.C. a/a/o Ronnie Springer, Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

66 Misc.3d 132 (A)

120 N.Y.S.3d 550 (Table)

Anthony GAGLIARDI, D.C. a/a/o Ronnie Springer, Plaintiff-Respondent,

v.MVAIC, Defendant-Appellant.

570353/19

Supreme Court, Appellate Term, New York, FIRST DEPARTMENT.

Decided December 20, 2019

Per Curiam.

Order (Denise M. Dominguez, J.), entered August 27, 2018, 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 eliminate all triable issues concerning coverage since its own proof contains conflicting evidence about the ownership of the vehicle (see Karina K. Acupuncture, P.C. v. MVAIC , 55 Misc 3d 139[A], 2017 NY Slip Op. 50546[U] [App Term, 1st Dept. 2017] ; VS Care Acupuncture, PC v. MVAIC , 51 Misc. 3d 147[A], 2016 NY Slip Op. 50764[U] [App Term, 1st Dept 2016] ). Specifically, although MVAIC contends that the assignor Ronnie Springer was the owner of the uninsured vehicle, and therefore not a "qualified person" ( Insurance Law § 5202[b] ), evidence in the record tends to indicate that the assignor was neither the registered owner nor title holder of the vehicle, and that the vehicle was registered to one Melanie Gamble.