August 30, 2012

Pomona Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 51684(U))

Headnote

A provider sued MVAIC for first-party no-fault benefits, and MVAIC moved for summary judgment dismissing the complaint on the ground that the assignor was not a qualified person. The Civil Court denied the motion. The Appellate Term, First Department, held that MVAIC failed to meet its prima facie burden of showing that no policy of insurance was in effect at the time of the accident. The conflicting statements about possible insurance coverage in the assignor's notice of intention to make claim might raise a triable issue but did not satisfy MVAIC's threshold burden. The order was affirmed.

Reported in New York Official Reports at Pomona Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 51684(U))

[*1]
Pomona Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp.
2012 NY Slip Op 51684(U) [36 Misc 3d 151(A)]
Decided on August 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570758/11. Calendar No. 11-411

Pomona Medical Diagnostics, P.C., a/a/o Lorraine Robinson, 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 (Raul Cruz, J.), entered October 19, 2010, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Raul Cruz, J.), entered October 19, 2010, affirmed, with $10 costs.

This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant MVAIC failed in its burden to establish, prima facie, that plaintiff’s assignor was not a “qualified person” entitled to no-fault coverage (see Englington Med., PC v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]. The conflicting statements as to potential insurance coverage set forth in plaintiff’s assignor’s notice of intention to file a claim against MVAIC, while perhaps sufficient to raise a triable issue as to coverage, was insufficient to meet defendant’s threshold burden to establish that 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 30, 2012