NR PT BRITTNEY BROTHERS v. Allstate Insurance, Defendant. (2026)

Papers

Notice of Motion and Affidavits Annexed NYSCEF

Exhibits NYSCEF

Upon the foregoing cited papers, the Decision/Order on Defendant's Motion for Summary Judgment is as follows:

Defendant's motion for summary judgment is DENIED in its entirety. An insurer seeking summary judgment based upon the statutory intoxication exclusion bears the burden of establishing, through competent and admissible evidence, both: (1) that the eligible injured person was intoxicated or impaired; and (2) that the person's injuries resulted from operating a motor vehicle while in that condition (see Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 [2d Dept 2010]). Defendant has failed to satisfy its burden. The insurer in Westchester Medical Center, upon which Defendant relies, supported its motion with unimpeachable certified hospital records with confirming toxicology report of intoxication. Here, Defendant relies upon uncertified and unauthenticated medical records and a police accident report that were not submitted in admissible form. Defendant failed to provide an affidavit or other admissible competent evidentiary foundation establishing the admissibility of those documents under CPLR § 4518 or any other applicable evidentiary rule. Consequently, those materials are insufficient to establish Defendant's entitlement to judgment as a matter of law, obviating the shifting of the burden to rebut by Plaintiff.

Moreover, the assignor's examination-under-oath testimony expressly disputes that she was intoxicated or impaired at the time of the accident. Defendant failed to submit competent evidence conclusively establishing either the assignor's intoxication or the requisite causal connection between any alleged intoxication and the accident or resulting injuries. Speculation, suspicion, and unauthenticated documentary evidence cannot satisfy Defendant's prima facie burden.

Upon Defendant's failure to establish its prima facie entitlement to summary judgment, its motion must be denied regardless of the sufficiency of Plaintiff's opposing papers. Defendant also failed to establish its fee-schedule defense as a matter of law. Defendant did not submit competent and admissible evidence demonstrating that Plaintiff's charges exceeded the applicable fee schedule or otherwise identifying a legally sufficient basis for reducing or denying the subject claims.

Accordingly, it is hereby:

ORDERED, that Defendant's Motion for Summary Judgment is DENIED in its entirety and that no finding is made that the assignor was intoxicated or impaired or that any alleged intoxication or impairment caused or contributed to the accident or resulting injuries. To the extent Defendant continues to pursue intoxication defense at trial, Defendant shall bear the burden of proving, through competent and admissible evidence, both the alleged intoxication or impairment and the required causal connection between that condition and the accident and resulting injuries. Defendant shall likewise bear the burden of establishing any fee-schedule defense through competent and admissible evidence at trial. LH

This constitutes the decision and order of the Court.

Date: September 3, 2026

Brooklyn, New York

Honorable Sandra Elena Roper

Judge of the Civil Court, Kings County

Sandra Elena Roper, J.