A.C. Med. P.C. v MVAIC

[*1] A.C. Med. P.C. v MVAIC 2018 NY Slip Op 51533(U) Decided on February 16, 2018 Civil Court Of The City Of New York, Kings County Kennedy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2018
Civil Court of the City of New York, Kings County

A.C. Medical P.C., a/a/o KRYSTLE THOMAS, Plaintiff,

against

MVAIC, Defendant.



742461/16



For plaintiff:

Melissa Betancourt Esq.

Law Offices of Melissa Betancourt, P.C.

2761 Bath Avenue, Suite B1 & B2

Brooklyn, NY 11214

For defendant:

Andrew J. Staub, Esq.

Law Office of Jaime E. Gangemi

100 William Street, 14th Floor

New York, NY 10038
Odessa Kennedy, J.

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Notice of Cross-Motion 3

Affirmation in Opp. To Cross-Motion 4

Reply Affirmation 5

In this action by a provider to recover assigned first-party no-fault insurance benefits, defendant Motor Vehicle Accident Indemnification Corporation ("MVAIC") moves for summary judgment dismissing the complaint, asserting as affirmative defenses: a) there is no coverage available for plaintiff's assignor from MVAIC; and b) the applicant failed to exhaust all remedies against the known vehicle owner pursuant to Insurance Law, Article 52, section 5202(b). Plaintiff cross-moves for summary judgment.

As the party seeking summary judgment, defendant has the burden of demonstrating its entitlement thereto as a matter of law by admissible evidence (Dalton v. Educational Testing Service, 294 AD2d 462, 463 [2d Dept., 2002]).

Plaintiff contends that defendant denied plaintiff's claim beyond 30 days following receipt of the claim, thereby rendering the denial untimely. In this action, however, defendant denied the claim based on lack of coverage, which does not fall within the purview of the 30 day requirement and may be raised at any time. The requirement that defendant denies the bills within 30 days of the receipt of the claim applies to denials that are based on lack of response to verification requests and not lack of coverage, which is not a precludable defense (Flatbush Chiropractic, P.C. v. Hereford Ins. Co., 49 Misc 3d 149(A) [App. Term, 2d Dept., 2015]; Howard M. Rombon, Ph.D., P.C. v. MVAIC, 21 Misc 3d 131(A) [App. Term, 2d Dept., 2008]).

Defendant submits the sworn affidavit of Ron Johnson, who states that he is a Qualifications Examiner with defendant MVAIC. The affiant states that, since the applicant has coverage from the offending vehicle and failed to provide proof that she was uninsured, there is no coverage from MVAIC.

The Court finds that the affidavit is sufficient to establish defendant's prima facie case on its lack of coverage defense.

Moreover, defendant submits a copy of the police report that identifies the owner of the subject vehicle involved in the incident and indicates that the vehicle was registered and insured in Mississippi. As a condition precedent to commencing an action against MVAIC, plaintiff was required to exhaust all remedies against the vehicle's owner before seeking relief from MVAIC (TAM Med. Supply Corp. v. MVAIC, 58 Misc 3d 143(A) [App. Term, 2d Dept., 2017]). Plaintiff did not demonstrate that it exhausted its remedies against the owner of the vehicle as there is no evidence that plaintiff or its assignor ever attempted to contact or make a claim against the individual who was listed as the owner of the subject vehicle on the police report.

For the above reasons, defendant's motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied.

The above constitutes the decision and order of the Court.

Dated: February 16, 2018

_________________________________

ODESSA KENNEDY, J.