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SUPERIOR MEDICAL REHAB, PC a/a/o LUIS JADAN, plf-res, v. MVAIC, def-app

15-047. SUPERIOR MEDICAL REHAB, PC a/a/o LUIS JADAN, plf-res, v. MVAIC, def-app — Order (Ruben Franco, J.), entered August 22, 2014, affirmed, with $10 costs.

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15-047. SUPERIOR MEDICAL REHAB, PC a/a/o LUIS JADAN, plf-res, v. MVAIC, def-app — Order (Ruben Franco, J.), entered August 22, 2014, affirmed, with $10 costs.

We sustain the denial of defendant MVAIC’s motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons different than those stated by Civil Court. Even assuming, without deciding, that plaintiff’s assignor was required to comply with Insurance Law §5218(b) (5) and make “all reasonable efforts…to ascertain” the identity of the driver and/or owner of the taxi in which he was a passenger when the accident occurred, the proof submitted by defendant MVAIC failed to establish as a matter of law that the assignor failed to make such reasonable efforts (see Matter of Carter v. Motor Veh. Acc. Indem. Corp., 49 AD3d 1169 [2008]; Matter of O’Rourke v. Motor Veh. Acc. Indem. Corp., 29 AD2d 938 [1968]). The limited proof submitted by MVAIC, including the assignor’s terse affidavit, in which he stated, inter alia, that the driver of the taxi “stayed at the scene when the police and the ambulance arrived [and] I was taken to Elmhurst Hospital,” and the (largely illegible) ambulance report, was essentially silent on the issue. MVAIC merely pointed to gaps in the plaintiff’s proof instead of carrying its burden on the motion (see Torres v. Merrill Lynch Purch., 95 AD3d 741 [2012]).

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