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Civil Court, City of New York,

FLATLANDS CHIROPRACTIC WELLNESS, P.C. as Assignee of Garcia, Plaintiff(s), v. AVIS BUDGET CAR RENTAL, LLC C/O Sedgwick Claims Management Services, Defendant(s).

Index No. CV-716212-19/QU

Decided: August 19, 2021

Plaintiff's Counsel: Law Offices of Gabriel Moroff, P.C., 100 Merrick Road, 430W, Rockville Centre, NY 11570 Defendant's Counsel: Brand, Glick & Brand, P.C., 600 Old Country Road, Suite 440, Garden City, NY 11530

The following papers were read on Defendant's motion for summary judgment seeking an order dismissing Plaintiff's complaint:

Papers Numbered

Defendant's Notice of Motion and Affirmation in support dated January 2, 2020 (“Motion”) and file stamped by the court on January 7, 2020 1

Plaintiff's Affirmation in Opposition dated October 16, 2020 (“Opposition”) and electronically filed with the court on October 19, 2020 2

Defendant's Reply Affirmation dated October 20, 2020 (“Reply”) and electronically filed with the court on October 20, 2020 3

I. Background

Plaintiff sued Defendant for breach of contract in the amount of $1,289.97 for medical services provided to Plaintiff's assignor, Garcia, from August to November 2016, plus interest, attorneys’ fees and costs. Plaintiff assignor Garcia was injured in an automobile accident on June 21st, 2016 involving a vehicle allegedly insured by Defendant. Defendant moved for summary judgment dismissing Plaintiff's complaint pursuant to CPLR 3212 based on lack of insurance coverage for the disputed claims. Plaintiff opposed the motion on the ground (1) that there were triable issues of fact in that the location of loss in Defendant's ISO search was inaccurate; (2) that Defendant's ISO claim search print out was inadmissible hearsay (see Opposition). Oral argument by both parties was held on April 26, 2021 before this Court.

II. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In the instant matter, Defendant supported its Motion with an affidavit by its claim litigation representative Weber dated as of October 28, 2019, where Weber stated that he was “fully familiar with and maintain[ed] personal knowledge relative to the administration of the open claim for the June 21, 2016 loss involving Ramon Garcia” (see Motion, Aff. of Hyman, Ex. C at 1). After “review of the physical file, computer records and logs maintained by [him] in their ordinary course of business and personally maintained by [him],” Weber determined that Garcia was not insured by Defendant at the time of the car accident (Motion, Hyman Aff., Ex. C at 2). Here, Defendant sufficiently established, prima facie, that Plaintiff assignor Garcia was not insured by Defendant (See New Way Medical Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term 2d, 11th & 13th Jud Dist 2015]).

It is well established that once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party's showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]).

In our instant matter, Plaintiff opposed the Motion stating that Defendant's ISO search print out that Weber relied on was inadmissible hearsay, particularly because such ISO search report indicated Plaintiff assignor Garcia was insured by Advance Auto Parts at the time of the accident and that the location of the accident was in Virginia rather than in New York. Here, whether Plaintiff assignor Garcia was insured by Advance Auto Parts at the time of the accident is irrelevant. Defendant established by Weber's affidavit that Plaintiff assignor Garcia was not insured by Defendant at the time of the car accident and Weber attested that he had personal knowledge about Defendant's “administration of the open claim for the June 21, 2016 loss involving Ramon Garcia” (see Motion, Hyman Aff., Ex. C at 1). If Plaintiff were to support its Opposition by an affidavit with personal knowledge stating that Plaintiff assignor Garcia was insured by Defendant at the time of the car accident or were to provide a copy of the insurance contract entered into between Defendant and Plaintiff assignor Garcia, Plaintiff would have also established its prima facie case. If so, a triable issue would have existed warranting a trial. However, it does not. Here, Plaintiff did not sufficiently rebut Defendant's defense that Plaintiff assignor lacked insurance coverage, nor did Plaintiff present any proof of insurance coverage. This Court notes that Plaintiff did not allege unavailability of such proof of insurance coverage in its Opposition. Regarding the issue of fact claimed by Plaintiff about the location of loss in the ISO search, no evidence containing a different location of loss was given by Plaintiff in support its Opposition. In any event, the location of loss is not germane to the insurance coverage at issue.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact in that there was no insurance coverage at the time of the car accident, that the controversy regarding Plaintiff's claim of breach of contract can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]), and that Defendant is entitled to a dismissal of Plaintiff's claims.

III. Order

Accordingly, it is

ORDERED that the Defendant's motion for summary judgment is granted, and Plaintiff's complaint is dismissed without prejudice, and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the DECISION and ORDER of the Court.

Wendy Changyong Li, J.

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