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Successful summary judgment: Plaintiff Assignor jumped on a parked car and walked away and the complaint was dismissedJanuary 10, 2013

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co., 2012 NY Slip Op 52388(U)(App. Term 2d Dept. 2012)

In this case, the Plaintiff Assignor jumped on a parked car and walked away and the complaint was dismissed

“In support of its cross motion, defendant submitted an affidavit by its insured who stated that plaintiff’s assignor had jumped on the hood of the insured’s car, while it was parked, and got off of the car without incident or injury. The insured, according to his sworn statement, drove away without further contact with plaintiff’s assignor. Consequently, defendant argued that plaintiff’s assignor’s alleged injuries did not arise out of an insured incident.”

In opposition Plaintiff offered a non certified police report and what appear to be non-certified hospital records, which District Court found was sufficient to warrant a trial.

Holding #1: The police report offered by plaintiff did not constitute proof in admissible form, as it was not certified pursuant to CPLR 4518 (c) and no foundation establishing its authenticity and accuracy was offered (see Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2009]). In any event, “the statements in the report attributed to the [plaintiff’s assignor] constituted inadmissable hearsay” (id. at 991-992).”

Holding #2: “The hospital records that plaintiff submitted to the court purport to include a description of the alleged accident as reported to hospital staff by plaintiff’s assignor. Such statements are considered reliable only when they are relevant to diagnosis or treatment (see Williams v Alexander, 309 NY 283, 286 [1955]). Here, the hospital records do not contain any allegations that rebut the allegations contained in defendant’s insured’s sworn statement. Furthermore, plaintiff failed to lay the requisite foundation for the hospital records (see CPLR 4518 [a], [c]).”  Following this the court gave an “assuming arguendo” passage when they said: “even assuming the hospital records were admissible at all, and therefore could be used as proof that plaintiff’s assignor was injured by a motor vehicle, they still did not raise a triable issue of fact as to whether defendant’s insured was involved, thereby triggering defendant’s liability.”

End of the day: Plaintiff loses.  Two case cites: St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 69 AD3d 923 [2010]; Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

7 Responses

  1. Anonymous says:

    Isn’t getting hurt by jumping on a car or falling unto a car “use and operation”? if getting hurt while putting groceries in the car is, why isn’t this an “insured event”?

  2. nycoolbreez says:

    So is the court ruling that a party may not use hearsay that is corroborated with testimony to oppose a motion for summary judgment?

  3. Captain America says:

    You guys are still at it. Pretending that law has anything do with it.

    Here the App Term is correct in its application of the rules of evidence.

    However it only applies the rules of evidence when it benefits the insurance company.

    I have seen the App Term treat a press release; a news paper story about fraud; etc — I have seen them treat this type sewage with the same reverence that one would treat an affidavit signed by Mother Theresa and notarized by George Washington.

  4. Anonymous says:

    CAP, I afraid I have to disagree with you. This case has nothing to do with rules of evidence. Lets assume all the evidence shows that claimant was injured when he jumped on the vehicle. No Fault covers “personal injuries caused by an accident arising out of the use or operation of a motor vehicle”. The REGS state in the definitions section “(h) “use or operation” of a motor vehicle or a motorcycle includes the loading or unloading of such vehicle.”

    If loading and unloading a vehicle is use or operation, it would seem to me that jumping and landing on a vehicle is as well. Indeed, it is difficult to imagine that landing on a car is not use or operation.

    At best, the insurer has an exclusion, “(f) any person who intentionally causes his or her own personal injury”. Like all exclusions, it is subject to preclusion doctrine.

    Am I missing something?

  5. Captain America says:

    Anon. You are probably right. I don’t know what the hell I am talking about. But at least I stopped using my real name because my comments were showing up all over google and I looked like an idiot.

    It was a contest between me and Rogak.

  6. Captain America says:

    Okay riddle this. You have a client facing some serious charges. His wife is arguably part of the conspiracy. In an effort to get a plea the government asserts that if we go to trial against the client we have to prep and we’ll see stuff about the wife the will seal her fate visa vi indictment.

    Can the wife roll on the the husband. I thinks she can if she wants to. I don’t see how spousal privilege works if the spouse is willing. She has a right to squeal in order to get a better deal.

    Anyone know. J.T. you should know since you know all.

  7. kurt lundgren says:

    What I know Captain America is that when a man talks and his wife isnt there to hear him he is still wrong.

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