August 18, 2011

Pomona Med. Diagnostic, P.C. v MVAIC (2011 NY Slip Op 51573(U))

Headnote

In an action to recover assigned first-party no-fault benefits, MVAIC moved for summary judgment dismissing the complaint and the Civil Court, Bronx County, denied the motion. The Appellate Term, First Department, affirmed. It noted that MVAIC bears the burden of proving its lack-of-coverage defense on such a motion. MVAIC's submissions were insufficient to establish prima facie that the assignor was not a qualified person or lacked MVAIC no-fault coverage, so the denial was proper.

Reported in New York Official Reports at Pomona Med. Diagnostic, P.C. v MVAIC (2011 NY Slip Op 51573(U))

[*1]
Pomona Med. Diagnostic, P.C. v MVAIC
2011 NY Slip Op 51573(U) [32 Misc 3d 140(A)]
Decided on August 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-128.

Pomona Medical Diagnostic, P.C. a/a/o Vincent Patterson, Plaintiff-Respondent, – –

against

MVAIC, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 16, 2010, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Raul Cruz, J.), entered June 16, 2010, affirmed, with $10 costs.

In this action to recover assigned first-party no-fault benefits, defendant MVAIC failed to establish its entitlement to summary judgment dismissing the complaint (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). As has been repeatedly held, “the burden is on MVAIC to prove its lack-of-coverage defense” in support of its motion for
summary judgment (Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d at 667; see Socrates Med. Health, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51780[U] [2010]; Socrates Med. Health, P.C. v MVAIC, 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U] [2010]).

Here, MVAIC’s submissions are insufficient to establish, prima facie, its defense that plaintiff’s assignor was not a “qualified person” or lacked MVAIC no-fault coverage (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 229; Omega Diagnostic Imaging, P.C. v MVAIC, 30 Misc 3d 145[A], 2011 NY Slip Op 50432[U] [2011]; Omega Diagnostic Imaging, P.C. v MVAIC., 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Accordingly, MVAIC’s motion for summary judgment of dismissal was properly denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 18, 2011