In another case involving the defense of lack of contact with a pedestrian, the Appellate Term in Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U)(App. Term 2d Dept. 2009) affirmed the order of the Civil Court that granted the insurance carrier summary judgment, dismissing the complaint. The pertinent parts of the affidavit of the insured that was found to be sufficient to make a prima facie case of lack of involvement was as follows:
“[d]efendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.”
