Pavlova v Allstate Ins. Co., 2018 NY Slip Op 51061(U)(App. Term 2d Dept. 2018)
“In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] 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]”
I just had a discussion with someone regarding 65-.14, which stands for the proposition that contact is not necessary for no-fault eligibility purposes. The case law has construed that, and properly, to require a discernible nexus between the instrumentality and the injury. (1) Car must it person.; (2) Person in car that stop shorts; (3) Car hits power line that falls on someone. But a pedestrian without contacting a vehicle, or a pedestrian that did not contact an object due to a car’s contact with something will continue to require no-fault ineligibility.
