KHODADADI RADIOLOGY v. NYCTA MaBSTOA (2008)

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered April 28, 2006.   The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment.   Defendant opposed the motion and cross-moved for summary judgment, asserting that plaintiff's assignor was not a passenger on defendant's bus when the accident occurred and that, even if she was a passenger on the bus, defendant was not liable for no-fault benefits because a member of the assignor's household, her husband, owned a car which was insured on the date of the accident.   The court granted plaintiff's motion for summary judgment and denied defendant's cross motion.   This appeal by defendant ensued.

 Inasmuch as defendant raises no issue on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.   In opposition to plaintiff's motion for summary judgment and in support of its cross motion, defendant submitted an affidavit executed by the driver of the bus which was involved in the accident at issue.   Said affidavit was insufficient to demonstrate that defendant possessed a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] ) because it merely stated that more than five years after the accident, the bus driver had no recollection of a person with plaintiff's assignor's name being a passenger on his bus at the time of the accident.   Accordingly, said affidavit failed to demonstrate defendant's prima facie entitlement to summary judgment and it was also insufficient to establish the existence of a triable issue of fact with regard to whether plaintiff's alleged injuries did not arise from the accident involving the bus.

 To the extent defendant also sought summary judgment on the ground that it was not obligated to provide no-fault benefits to plaintiff's assignor by virtue of the fact that her husband owned a car which was insured on the date of the accident, such a defense was predicated upon statements made by plaintiff's assignor during her examination, which was conducted pursuant to General Municipal Law § 50-h, and upon print-outs of Insurance Activity Expansion Reports, which were annexed to defendant's cross motion as an exhibit.   However, the purported Insurance Activity Expansion Reports were not certified and, in support of its cross motion, defendant made no attempt to establish that said reports constituted evidence in admissible form.   Although defendant subsequently served a reply affirmation which attempted to lay a foundation for the admission of said reports, defendant could not establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure the defect in defendant's cross motion (see Canter v. East Nassau Med. Group, 270 A.D.2d 381, 704 N.Y.S.2d 624 [2000];  Fischer v. Edward M. Weiland M.D., P.C., 241 A.D.2d 439, 661 N.Y.S.2d 516 [1997];  Calderone v. Harrel, 237 A.D.2d 318, 654 N.Y.S.2d 416 [1997];  Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 630 N.Y.S.2d 1003 [1995];  Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 582 N.Y.S.2d 712 [1992] ).   Moreover, defendant's reliance upon statements made by plaintiff's assignor at her General Municipal Law § 50-h examination is misplaced since the unsigned transcript of her testimony did not establish that, on the date of the accident, she or another member of her household owned a car and that the car was insured.   As a result, defendant failed to establish that it was entitled to summary judgment based upon its defense that there was another insurance policy which was required to pay no-fault benefits on behalf of plaintiff's assignor or that there was a triable issue of fact as to this defense which warranted denial of plaintiff's motion for summary judgment.   In light of the foregoing, the order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment is affirmed, albeit on other grounds.

Contrary to the majority, I find that the statements made by plaintiff's assignor at her General Municipal Law § 50-h hearing, regarding her family and auto ownership were more than sufficient to raise a triable issue of fact as to whether defendant was liable for payment of first-party benefits.   This is especially true in light of the failure of plaintiff's assignor to deny or “correct” that statement.

I also find that it is not necessary for the defendant to attach a sworn transcript of plaintiff's assignor's 50-h hearing testimony in opposition to plaintiff's motion.   An unsigned transcript of plaintiff's assignor, when it accompanies the defendant's opposition papers, is sufficient to warrant a denial of a motion for summary judgment (see also Levbarg v. City of New York, 282 A.D.2d 239, 241, 723 N.Y.S.2d 445 [2001] ).

Indeed, in this case, there is even more.   Plaintiff's assignor failed to respond to plaintiff's medical history questionnaire as to whether or not she, or a family member with whom she resided, owned a car and whether it was insured.   Nevertheless, despite the absence of such information, plaintiff medical provider elected to treat its assignor and then file a claim with defendant when it had insufficient knowledge to believe that defendant was responsible therefor.

In addition, I find that this defendant clearly demonstrated a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] ).   Defendant submitted the sworn affidavit of Frank Noble II stating that he was the driver of the bus at the time of the subject accident.   He further swears to the fact that he has “no record ․ of a passenger named Helen Boddie-Khan on my bus at time of the accident” (see Millennium Med. Instruments, Inc. v. NYC Tr. Auth., 10 Misc.3d 139(A), 2005 N.Y. Slip Op. 52205(U), 2005 WL 3621348 [App. Term, 2d & 11th Jud. Dists.] ).   This bus driver's assertion that he generated some sort of “record” of the people on the bus and that Ms. Khan's name was not contained in that “record” is more than sufficient to raise a “founded belief” that the assignor was not injured as a result of this incident.

In view of the above, I would deny plaintiff's motion for summary judgment.

WESTON PATTERSON, J.P., and BELEN, J., concur. GOLIA, J., concurs in part and dissents in part in a separate memorandum.