Universal Acupuncture Pain Servs. P.C. v MVAIC

[*1] Universal Acupuncture Pain Servs. P.C. v MVAIC 2006 NY Slip Op 52343(U) [13 Misc 3d 1244(A)] Decided on December 5, 2006 District Court Of Nassau County, First District Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 7, 2006; it will not be published in the printed Official Reports.

Decided on December 5, 2006
District Court of Nassau County, First District

Universal Acupuncture Pain Services P.C. a/a/o JONATHAN LAUL, Plaintiff(s) v MVAIC, Defendant(s)



1761/06



La Sorsa & Beneventano

Morris, Duffy, Alonso & Faley

Randy Sue Marber, J.

The defendant, MVAIC, moves for summary judgment based upon the seventh and forty-sixth affirmative defenses contained in its answer. Specifically, the defendant argues that (1) there is no coverage with MVAIC because the plaintiff's assignor has failed to qualify for MVAIC no-fault benefits pursuant to Insurance Law Article 52; and (2) the plaintiff's claim may not be maintained because of the statute of limitations. The plaintiff opposes the motion and the defendant submits a reply.[FN1]

The defendant claims the plaintiff's assignor, Jonathan Laul, was a passenger of a motor vehicle owned by Crescencio Canela Company on October 11, 2000, the date of loss. On January 17, 2006 the instant action was commenced to recover $3,602.00 in unpaid medical bills in this Court by the filing of a summons with endorsed complaint (UDCA §403). The plaintiff alleges that it rendered services to its assignor on various dates in October, November and December of 2000 and January and February of 2001. The plaintiff goes on to claim that it [*2]timely submitted bills and claims to the defendant and those claims were neither paid nor denied in accordance with New York State no-fault regulations.

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 is nonexistent with MVAIC as Mr. Laul failed to qualify for MVAIC no-fault benefits. In particular, the defendant argues that because the assignor has failed to provide proof of New York residency. Moreover, the defendant submits that the statute of limitations to become qualified has expired. In support of this proposition, the defendant annexes the affidavit of Laura Figueroa, a Qualifications Examiner with the defendant [see, Exhibit "E"]. The affidavit sets forth the defendant's normal business practices and patterns of communicating with applicants. Ms. Figueroa states that on June 27, 2001 a letter was sent to Mr. Laul's attorney stating the defendant was unable to process the Notice of Intent to make a claim because he failed to prove residency or to provide a social security number. In addition, Ms. Figueroa noted that a telephone conversation ensued between the defendant and Mr. Laul's attorney regarding the deficiencies of his application. 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 it filed a Notice of Intention to make a claim with MVAIC within 180 days. 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 the Notice of Claim requirement. The plaintiff does not address the issue of the failure of the assignee to provide MVAIC with proof of residency.

Statute of Limitations

The applicable statute of limitations is found in CPLR 214(2). CPLR 214(2) reads, in pertinent part, as follows: [*3] "an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215; ... "

The Court of Appeals has held that a three (3) year statute of limitations period is applicable for a medical provider seeking to recover unpaid first party no fault insurance from MVAIC. The reason being is that MVAIC's obligation to pay the claimants' first party benefits and its entitlement to reimbursement are created or imposed by statute, but for which they would not exist (see, MVAIC v. Aetna Casualty & Surety Company, 89 NY2d 214, 652 NYS2d 584 [1996]; Line Chiropractic, P.C. v. Motor Vehicle Indemnification Corporation, 6 Misc 3d 1032[A], 800 NYS2d 347 [Civil Court Bronx 2005]).

In the instant case, the defendant's claims interposed on or about October, November and December, 2000 and January 6, 13, 19, 2001 are dismissed as untimely. The remaining claims dated January 27, 2001 and February 10, 2001, although not denied for statute of limitation purposes as MVAIC concedes, are nonetheless dismissed on summary judgment.

Summary Judgment

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. 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. 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."

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.

The 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]). In the instant case, the plaintiff has failed to meet his burden in establishing the condition precedent, of qualifying as a covered person. 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]). [*4]

Accordingly, the defendant's motion for summary judgment is granted and the plaintiff's complaint is dismissed.

So Ordered:

DISTRICT COURT JUDGE

Dated: December 5, 2006

cc: Footnotes

Footnote 1:It should be noted that although the defendant references his statute of limitations argument in the notice of motion, it does not address the issue in the motion itself. It is only in the defendant's reply that it raises these arguments for the first time. This is inappropriate and will not be considered by this Court (see, Matter of Zimmerman v. Planning Bd. of Town of Schodack, 294 AD2d 776, 742 NYS2d 431, lv denied 98 NY2d 612, 749 NYS2d 4 [3d Dept 2002]).