Lexington Acupuncture, PC v MVAIC

[*1] Lexington Acupuncture, PC v MVAIC 2012 NY Slip Op 51960(U) Decided on October 9, 2012 Civil Court Of The City Of New York, Kings County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 9, 2012
Civil Court of the City of New York, Kings County

Lexington Acupuncture, PC A/A/O KATHLEEN GILLESPIE, Plaintiff,

against

MVAIC, Defendants.



13328/09



A P P E A R A N C E S

Attorneys for Plaintiff:

Gary Tsirelman, P.C.

65 Jay Street, 3d Floor

Brooklyn, NY 11201

Attorneys for Defendant:

Cruz & Gangi

110 William Street, 19th Floor

New York, NY 10038

Katherine A. Levine, J.

All the issues raised by defendant in its brief were reiterated by the Second Department in NY Hospital Medical Center of Queens v. MVAIC, 12 AD3d 429 (2d Dept. 2004) motion for leave to appeal den. 4 NY3d 705 (2004).[FN1] This case makes it clear that neither plaintiff's burden to make out its prima facie case nor the time lines governing a defendant's denial are altered because MVAIC is the defendant.

The plaintiff need only show, by proper evidentiary proof, that the prescribed statutory billing forms were properly generated, mailed and received, and that no fault benefits were over due. NY Hosp., supra, 12 AD3d at 429. See, Mary Immaculate Hosp. v Allstate Ins. Co. 5 AD3d 742 -43 (2d Dept.2004). Plaintiff does not have to prove that the assignor was a "qualified person" as part of its prima facie case. Rather, MVAIC must establish its prima facie defense that plaintiff's assignor was not a "qualified person" or lacked MVAIC no-fault coverage. Englington Med., P.C. v MVAIC , 81 AD3d 223, 229 (2d Dept. 2011); Pomona Medical Diagnostic, P.C. v. MVAIC, 2011 NY Slip Op 51573(U), 32 Misc 3d 140(A) (1st Dept. 2011); [*2]Bath Medical Supply Inc., v. MVAIC, 2010 NY Slip Op 31281(U), 2010 NY Misc. LEXIS 2327 (Sup. Ct., Nassau Co. 2010).

Defendant next contends that any letters that it sent in an effort to determine/confirm whether the assignor was a qualified person ("qualification letters') should not be held to the same time requirements contained in 11 NYCRR §65.3.5-3.6 for verification letters since Article 52 of the Insurance Law makes the qualification of an applicant for MVAIC a condition precedent to coverage and hence constitutes a non precludable defense. In NY Hospital, supra, the Second Department specifically rejected MVAIC s contention that the 30-day time limit in which to deny a claim, contained in 11 NYCRR 65.15, does not apply until after MVAIC has qualified an injured party. 12 AD3d at 430. The First Department subsequently noted that although the 30 day rule did not apply to the "narrow exception" based upon lack of coverage, Mtr of MVAIC v Interboro Medical Care, 73 AD3d 667(1st Dept. 2010), the situation in NY Hospital, supra - whether the applicant was a "qualified person" - did not fall within that exception. See, Exclusive Medical Supply Inc. v. Yango, 2012 NY Slip Op 50616(U), 35 Misc 3d 1209(A) (Civil Ct., Kings Co 2012). As such, any requests by MVAIC to determine the status of the assignor have to be made within the governing time frames for verification letters.

In light of the above ruling, the parties are directed to confer and determine the status of this case, and report back to the Court within three weeks of this decision.

This constitutes the decision and order of the court.



Dated: October 09, 2012

Katherine A. LevineJudge, Civil Court

ASN byin Court

Footnotes

Footnote 1:Plaintiff never submitted a brief despite this Court's direction.