Sure Way NY, Inc. v. Travelers Ins. Co.

Sure Way NY, Inc., as Assignee of Fagan, Esther, Respondent, against Travelers Insurance Company, Appellant. The Rybak Firm, PLLC (Duane Frankson of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Damin J. Toell and Karina Barska of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 20, 2016. The order denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which, upon the application of the substantive law of Florida (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), denied defendant's motion for summary judgment dismissing the complaint. A review of the record shows that defendant failed to meet its initial burden on its motion since its own submissions raise a triable issue of fact as to whether the assignor resided in New York or with the insured in Florida at the time of the accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Sandiford v Kahn, 84 AD3d 1209 [2011]). Accordingly, the order is affirmed. PESCE, P.J., WESTON and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 13, 2018