RAZ Acupuncture, P.C. v MVAIC

[*1] RAZ Acupuncture, P.C. v MVAIC 2009 NY Slip Op 52362(U) [25 Misc 3d 138(A)] Decided on August 31, 2009 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-1303 K C.

RAZ Acupuncture, P.C. a/a/o SENON HERNANDEZ, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered September 7, 2007, deemed from a judgment of the same court entered December 13, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 7, 2007 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,630.

Judgment reversed without costs, order entered September 7, 2007 vacated, defendant's motion for summary judgment dismissing the complaint granted and plaintiff's cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor did not provide MVAIC with proof that he was a resident of the State of New York. Plaintiff cross-moved for summary judgment. By order entered September 7, 2007, defendant's motion was denied and plaintiff's cross motion was granted. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

MVAIC's moving papers made a prima facie showing that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202 [b]) and, thus, that he is not a "covered person" (Insurance Law § 5221 [b] [2]; see Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]). We note that the defense of lack of coverage is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists [*2]2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary. Accordingly, MVAIC's motion for summary judgment dismissing the complaint should have been granted and plaintiff's cross motion for summary judgment should have been denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 2009