August 29, 2012

Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 51617(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits and moved for summary judgment, while MVAIC cross-moved to dismiss on a lack-of-coverage defense. The Appellate Term, First Department, noted that MVAIC bears the burden of proving its lack-of-coverage defense. The record included a denial of coverage letter from the putative insurer stating that the vehicle that struck the assignor was not insured on the date of the accident. MVAIC therefore failed to raise a triable issue as to whether a policy was in effect, and the order granting the plaintiff summary judgment was affirmed.

Reported in New York Official Reports at Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 51617(U))

[*1]
Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp.
2012 NY Slip Op 51617(U) [36 Misc 3d 145(A)]
Decided on August 29, 2012
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through September 6, 2012; it will not be published in the printed Official Reports.


Decided on August 29, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Hunter, Jr., J.


Bronx Expert Radiology, P.C. a/a/o Carmelo Rodriguez,570793/11 Plaintiff-Respondent, – –

against

Motor Vehicle Accident Indemnification Corp., Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered January 3, 2011, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered January 3, 2011, affirmed, with $10 costs.

In opposition to plaintiff’s prima facie showing of entitlement to summary judgment on its claim for assigned first-party no-fault benefits, defendant MVAIC failed to raise a triable issue of fact. “The burden is on MVAIC to prove its lack-of-coverage defense” (Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). On this record, and given the denial of coverage letter from the putative insurer – stating that the vehicle which struck plaintiff’s assignor was not insured on the date of the underlying accident – defendant failed to raise a triable issue as to whether there was a policy of insurance in effect at the time of the accident (see Pomona Med. Diagnostic v MVAIC, 30 Misc 3d 132[A],2011 NY Slip Op 50042[U][App Term, 1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 29, 2012