Bonsai Med. Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp.

[*1] Bonsai Med. Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp. 2006 NY Slip Op 51583(U) [12 Misc 3d 1195(A)] Decided on August 14, 2006 Nassau District Court Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2006
Nassau District Court

Bonsai Medical Acupuncture, P.C., a/a/o Jasmil Davila, Plaintiff,

against

Motor Vehicle Accident Indemnification Corporation, Defendant.



1749/06

Scott Fairgrieve, J.

The defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter "MVAIC"), moves for an order of this Court, granting summary judgment, pursuant to CPLR §3212, and dismissing the plaintiff's complaint, pursuant to CPLR §3211. The plaintiff, opposes the motion and the defendant has served a reply.

The plaintiff's assignor, Jasmil Davila, was allegedly involved in a motor vehicle accident on June 5, 2003. Thereafter, the assignor received acupuncture treatment in the amount of $480.00, at the plaintiff's offices, where an assignment of benefits was executed on June 10, 2003 (see, Exhibit "C"). On or about July 16, 2003, the plaintiff alleges that it submitted claims for no-fault payments to MVAIC and mailed them to 110 William Street, New York, New York 10038. To date, the plaintiff claims that no payment has been made, nor has there been a valid, timely denial or a proper request for additional verification. The defendant, however, alleges that there was no proper notice of the claim to MVAIC, a condition precedent to coverage, thus it was not required to issue a denial or payment.

"The Motor Vehicle Accident Indemnification Corporation (MVAIC) was established to pay bodily injury damages and no fault benefits to qualified' victims of motor vehicle accidents caused by uninsured motorists" (see, www.mvaic.com). In order to recover MVAIC benefits, the injured party must be eligible for MVAIC benefits, which requires that the party not have any other available insurance covering its claim and that the accident is of the nature contemplated by MVAIC. For example, there are various scenarios where MVAIC coverage becomes available to victims of accidents caused by uninsured motorists, such as: uninsured New York [*2]motor vehicles, stolen motor vehicles, unidentified hit and run drivers, etc. Upon proving that the claimant's accident was of a type contemplated by MVAIC, the injured party must then be a "qualified person", defined by MVAIC, as "... someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle."

A qualified person is required to provide MVAIC with notice of the claim. Insurance Law §5208, "Notice of Claim", states, in relevant part: (a) The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to:(1) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state, who files with the corporation within one hundred eighty days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:

(A) the person has a cause of action for damages arising out of the accident and setting forth the facts in support, (B) the cause of action is against the owner or operator of a designated uninsured motor vehicle, and

(C) the person is making a claim for such damages. (Emphasis added)

Once a qualified person has complied with the requirements of Insurance Law Article 52, then that person will be considered a covered person and will be entitled to the rights that a person under Insurance Law Article 51 is entitled to regarding no-fault benefits.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, in directing judgment in its favor (see, CPLR §3212[b]). The burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial (see, CPLR §3212[b]; see also, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). However, a movant's failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 NY2d 32, 508 NYS2d 923 [1986]).

The defendant alleges that "... coverage was nonexistent with MVAIC as plaintiff's assignor failed to submit a timely Notice of Intention to Make Claim' form, a prerequisite to MVAIC coverage..." (see, Notice of Motion, ¶6). The defendant attaches an affidavit of Laura Figueroa, a claims representative of MVAIC, whereby she states that based upon her review of the file and the standard practices and procedures of MVAIC, there was "No Notice of Intention [*3]to Make Claim" form in the file, where it is normally placed (see, Affidavit of Laura Figueroa, ¶6). Accordingly, the defendant has made out a prima facie showing of its entitlement to summary judgment as a matter of law.

In opposition, the plaintiff, in an effort to meet its burden of raising a triable issue of fact, asserts that as indicated above, a claim form was mailed to MVAIC, on or about June 17, 2003, requiring MVAIC to pay or timely deny the bill. The plaintiff applies the standard generally applied in Insurance Law Article 51 actions. In a no-fault insurance action, a medical provider must submit evidentiary proof that the appropriate claim forms were mailed, that the forms were received by the insurer and that the payment of no-fault benefits was overdue (see Mary Immaculate Hospital et al v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept 2004]; see also 11 NYCRR §65-3.3[d]; §65-3.5[a]). However, here, prior to a review pursuant to Article 51, the plaintiff must first comply with Article 52 and file a Notice of Claim, which it did not do in this instance. The plaintiff also attacks the sufficiency of Ms. Figueroa's affidavit, claiming that it is conclusory and that she lacks personal knowledge of the facts. However, the plaintiff does not address the issue of filing of a notice of claim, in the form of an affidavit, as required under Insurance Law §5208, to provide MVAIC with notice of the accident and the request for coverage, within 180 days of the accident.

This Court finds that complying with the "statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,' within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC" (see A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U, 2-3 (NY Misc 2006); Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137A, 803 NYS2d 19, 2005 NY Slip Op 51271U [App Term, 2d & 11th Jud Dists]). Accordingly, MVAIC's failure to timely deny plaintiffs' claims does not preclude the dismissal of the plaintiffs' causes of action based upon lack of coverage (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199-200, 681 NE2d 413, 659 NYS2d 246 [1997]). Accordingly, the defendant's motion for summary judgment is granted and the cause of action for $480.00 is dismissed. Furthermore, the defendant's motion pursuant to CPLR §3211 to dismiss the plaintiff's complaint is denied as moot.

So ordered:

DISTRICT COURT JUDGE

Dated:August 14, 2006 [*4]