FOREST HILLS HEALTHCARE PHYSICIAN v. LANCER INS CO (2021)

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor was not a passenger in defendant's insured's car when the accident occurred. The Civil Court denied defendant's motion.

While defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor's alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant's moving papers contain a copy of plaintiff's assignor's sworn application for no-fault benefits in which plaintiff's assignor swore that she was passenger in defendant's insured's vehicle when the accident occurred. In addition, although defendant's moving papers contain a statement by defendant's attorney that plaintiff's assignor appeared for an examination under oath, what transpired at the examination under oath is not set forth. As such, contrary to defendant's contention, defendant's moving papers do not establish, prima facie, that plaintiff's assignor was not a passenger in defendant's insured's vehicle when the accident occurred (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) and, as a result, denial of defendant's motion was required regardless of the sufficiency of plaintiff's opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.