TAM MEDICAL SUPPLY CORP v. COUNTRY WIDE INSURANCE COMPANY (2018)

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor was not a member of the policyholder's household. By order entered March 29, 2016, the Civil Court denied plaintiff's motion and granted defendant's cross motion.

The affidavit of defendant's no-fault litigation supervisor was conclusory in nature and unsupported by competent evidence (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986] ). Although the accident occurred in Pennsylvania, the NF–2 form annexed to defendant's cross motion states that plaintiff's assignor resides in Bronx County. As a result, defendant's cross motion for summary judgment should have been denied, because defendant failed to establish, as a matter of law, that plaintiff's assignor is not an eligible injured person (see 11 NYCRR § 65–1.1 [d] ). In view of the existence of a triable issue of fact as to whether the assignor was an eligible injured person who was entitled to reimbursement of first-party no-fault benefits (see id.), plaintiff's motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.