Maiga Prods. Corp. v MVAIC

[*1] Maiga Prods. Corp. v MVAIC 2020 NY Slip Op 50993(U) Decided on August 28, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1641 K C

Maiga Products Corp., as Assignee of Jean-Baptiste, Gerard, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered May 3, 2018. The judgment, entered pursuant to a decision of that court dated March 8, 2018, after a nonjury trial, awarded plaintiff the principal sum of $1,610.19.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated March 8, 2018 is deemed a premature notice of appeal from the judgment entered May 3, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $1,610.19.

At the outset of the trial, the parties noted that, by a prior order, the issues for trial would be limited (see CPLR 3212 [g]) to whether there was coverage for plaintiff's claims by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) and whether plaintiff's assignor owned the allegedly uninsured vehicle. The only witness at trial was an employee of MVAIC, who testified that plaintiff's assignor had appeared for an examination under oath and that the assignor was the de facto owner of the vehicle he was operating at the time of the accident (see generally Vehicle and Traffic Law § 128).

Proof that a claimant is a resident of the State of New York who is not the owner of the uninsured motor vehicle is a condition precedent to the claimant being a "qualified person" (Insurance Law § 5202 [b]) and, thus, potentially eligible to be deemed to be a "covered person" (Insurance Law § 5221 [b] [2]) who would be entitled to recover no-fault benefits from MVAIC. Plaintiff did not establish that its assignor was not the owner of the uninsured vehicle he was driving when the accident occurred. In view of the foregoing, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]; Advanced Chiropractic of NY, P.C. v MVAIC, 56 Misc 3d 134[A], 2017 NY Slip Op 50955[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2017]; see also Barillas v Rivera, 32 AD3d 872 [2006]), and we reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020