MAXFORD INC v. COUNTRY WIDE INSURANCE COMPANY (2018)

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.

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, arguing, among other things, that defendant had timely denied the claim on the ground that plaintiff's assignor's intoxication at the time of the accident at issue was the proximate cause of the accident. By order entered June 3, 2015, the Civil Court granted plaintiff's motion for summary judgment and implicitly denied defendant's cross motion. Defendant's appeal from the June 3, 2015 order is deemed from a judgment that was entered on May 6, 2016 pursuant to the order (see CPLR 5501 [c] ).

In opposition to plaintiff's motion, defendant raised a triable issue of fact as to whether it had timely and properly denied the claim based on the alleged intoxication of plaintiff's assignor, who was operating the vehicle at the time of the accident at issue (see Westchester Med. Ctr. v. Mapfre Ins. Co. of NY, 119 AD3d 777 [2014]; NYU–Hospital for Joint Diseases v. Esurance Ins. Co., 84 AD3d 1190 [2011] ).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.

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