Compas Med., P.C. v MVAIC

[*1] Compas Med., P.C. v MVAIC 2014 NY Slip Op 50465(U) Decided on March 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-199 K C.

Compas Medical, P.C. as Assignee of JARUAN HIDALGO, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 29, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted a cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, its motion for summary judgment was properly denied because plaintiff failed to demonstrate that MVAIC had failed to pay or deny the claims within the requisite 30-day period, or that MVAIC had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Avenue T MPC Corp. v Auto One Insurance Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff did not establish its prima facie entitlement to summary judgment (see Avenue T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

"Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person' and thereby have such rights as a covered person may have under [Insurance Law article 51],' an injured person must be a qualified person,' as that term is defined in Insurance Law § 5202 (b), and must have complied with all of the applicable requirements of Insurance Law article 52 (e.g. Insurance Law § 5208)" (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U], *1 [App Term, 2d & 11th Jud Dists 2008]). Thus, in order for someone who has allegedly been injured in a hit-and-run accident, such as plaintiff's assignor herein, to be a "covered person" and obtain no-fault benefits, the person must have complied with all of the applicable requirements of Insurance Law article 52, including, but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance Law § 5208 [a] [2] [A]), unless a showing is made that it was "not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible" (Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]).

In the instant case, MVAIC's cross-moving papers show that before receiving plaintiff's claims at issue, MVAIC received a copy of the police report and the notice of intention to make claim form sworn to by plaintiff's assignor, which set forth a New York residence for plaintiff's assignor. The form also stated that plaintiff's assignor was struck by a hit and run vehicle on June 2, 2010 and that the accident was reported to the police that same day. Thus, plaintiff's [*2]assignor has shown, prima facie, that he is entitled to be "deemed a covered person" and thereby "have such rights as a covered person may have under [Insurance Law article 51]" (Insurance Law § 5221 [b] [2]). After receiving plaintiff's claims, MVAIC served verification requests seeking a household affidavit and additional proof of the assignor's residence. Contrary to MVAIC's contention, the sworn statement that MVAIC received from plaintiff's assignor in response to MVAIC's verification requests does not establish that plaintiff's assignor is not a New York resident, such that it may be determined, as a matter of law, that plaintiff's assignor should not be "deemed to be a covered person."

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014