Howard M. Rombon, Ph.D, P.C. v MVAIC (2008 NY Slip Op 52128(U))

Reported in New York Official Reports at Howard M. Rombon, Ph.D, P.C. v MVAIC (2008 NY Slip Op 52128(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 2, 2007, deemed from a judgment of said court entered May 31, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 2, 2007 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, inter alia, for summary judgment, awarded plaintiff the principal sum of $1,852.46.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved, inter alia, for summary judgment, arguing, that plaintiff’s assignor was not a qualified person because she did not provide MVAIC with proof that she was a resident of the State of New York. The court granted plaintiff’s motion for summary judgment and denied MVAIC’s cross motion. This appeal by MVAIC ensued.

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). Based upon a review of the moving and cross-moving papers, we find an issue of fact exists as to whether plaintiff’s assignor is a “qualified person” and, thus, whether she is a “covered” person entitled to rights under Insurance Law article 51 (see Insurance Law § 5221 [b] [2]; Zuckerman v City of New York, 49 NY2d 557 [1980]). We note that MVAIC’s failure to establish that it timely denied plaintiff’s claims is of no consequence since an assertion [*2]that there is a lack of coverage may always be raised (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008