August 14, 2012

Premium Acupuncture, P.C. v MVAIC (2012 NY Slip Op 51534(U))

Headnote

A provider sued MVAIC for first-party no-fault benefits on behalf of several assignors, and MVAIC moved for summary judgment on the ground that the assignors were not New York residents and so not qualified persons under Insurance Law 5202(b). The Civil Court denied the motion. The Appellate Term, First Department, held that MVAIC submitted no evidentiary proof of its residency defense and that the burden of proving the issue lay with MVAIC, not the plaintiff. It noted that MVAIC's motion did not include the assignors' notice of intention to make claim forms or a sworn denial that they listed New York residences. The court affirmed the denial of summary judgment.

Reported in New York Official Reports at Premium Acupuncture, P.C. v MVAIC (2012 NY Slip Op 51534(U))

[*1]
Premium Acupuncture, P.C. v MVAIC
2012 NY Slip Op 51534(U) [36 Misc 3d 143(A)]
Decided on August 14, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570036/12.

Premium Acupuncture, P.C., a/a/o Alexander Batista, Premium Acupuncture, P.C., a/a/o Eldis Batista, Premium Acupuncture, P.C., a/a/o Rosa Batista, Premium Acupuncture, P.C., a/a/o Ynginia Paredes, Plaintiff-Respondent, – –

against

MVAIC, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered December 2, 2010, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Elizabeth A. Taylor, J.), entered December 2, 2010, affirmed, with $10 costs.

We agree that this first-party no-fault action is not ripe for summary dismissal. Defendant MVAIC failed to submit any evidentiary proof in support of its defense that plaintiff’s assignors were not New York State residents and thus not “qualified person[s]” entitled to no-fault coverage (see Insurance Law § 5202[b]). Contrary to defendant’s assertion, plaintiff is not required to establish that its assignors are qualified persons; the burden on the issue lies with defendant (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). In this regard, we note that defendant’s moving submission includes neither the notice of intention to make claim forms provided by the assignors, nor a sworn denial that the forms did not set forth the assignors’ New York residence (see Insurance Law § 5208; Diaz-Ruiz v MVAIC, 33 Misc 3d 127[A], 2011 NY Slip Op 51835[U] [App Term, 2d Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 14, 2012