March 24, 2011

Omega Diagnostic Imaging, P.C. v MVAIC (2011 NY Slip Op 50432(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits, and MVAIC moved for summary judgment on the ground that the provider failed to establish its assignor qualified for MVAIC coverage. The Appellate Term held the motion was properly denied, citing Appellate Division authority placing the burden on MVAIC regarding qualified person status. It also found MVAIC had not established that the plaintiff had to exhaust its remedies before suing. MVAIC's argument, first raised on appeal, that the action was premature because of outstanding verification requests was without merit. The order was affirmed.

Reported in New York Official Reports at Omega Diagnostic Imaging, P.C. v MVAIC (2011 NY Slip Op 50432(U))

[*1]
Omega Diagnostic Imaging, P.C. v MVAIC
2011 NY Slip Op 50432(U) [30 Misc 3d 145(A)]
Decided on March 24, 2011
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570683/10.

Omega Diagnostic Imaging, P.C., a/a/o Derrick Brown, Plaintiff-Respondent, – –

against

MVAIC, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated June 4, 2010, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Fernando Tapia, J.), dated June 4, 2010, affirmed, with $10 costs.

In this action by plaintiff-provider to recover assigned first-party no-fault benefits, defendant MVAIC’s motion for summary judgment dismissing the claim based on plaintiff’s failure to establish that its assignor qualified for MVAIC coverage, was properly denied (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (___AD3d ___, 2011 NY Slip Op 00176 [2011]). Nor has defendant established that plaintiff was required to “exhaust its remedies” prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Defendant’s argument, raised for the first time on appeal, that it is entitled to dismissal of the action as premature based on outstanding verification requests is without merit (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 24, 2011