Compas Med., P.C. v United Servs. Auto. Assn., 2016 NY Slip Op 50559(U)
“The insured’s passenger also submitted an affidavit, in which she stated that the subject vehicle did not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see 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 Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff opposed defendant’s cross motion only with an affirmation by its counsel, who did not assert that he possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”
These are dangerous cases. USAA picked up the no-fault and the third-party coverage end of this case. Through prevailing on the first-party claim, the Assignor is not estopped from arguing the existence of coverage on her third party claim. Allstate v. Lobell. USAA should be able to non-suit the Assignor on the third-party action.
If I were the PI attorney, I would now bring a malpractice action against counsel for Compas since it does not appear anybody attempted to obtain Assignor’s affidavit. This is not a situation you want to be in as a medical provider.
One Response
The third party action settled already.
What the Appellate Term isn’t telling you is that the record, via USAA’s own motion, contained a police report identifying the vehicle as striking the EIP and leaving the scene. There was also a witness identified in the report as having seen it happen. There should have been triable issues of fact on the face of the motion papers.