December 6, 2012

Excellent Care Physical Therapy, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 52210(U))

Headnote

A provider sued MVAIC for first-party no-fault benefits, and MVAIC moved for summary judgment dismissing the claim relating to one assignor. The Appellate Term held that MVAIC did not meet its threshold burden of showing the assignor was not a qualified person entitled to no-fault coverage. MVAIC's own proof included a denial from the putative insurer stating the vehicle was uninsured, which did not establish that no policy was in effect. The assignor's apparent failure to submit a household affidavit was not shown to be fatal, since MVAIC did not timely object to the claim form or seek verification. The denial of MVAIC's motion was affirmed.

Reported in New York Official Reports at Excellent Care Physical Therapy, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 52210(U))

[*1]
Excellent Care Physical Therapy, P.C. v Motor Veh. Acc. Indem. Corp.
2012 NY Slip Op 52210(U) [37 Misc 3d 139(A)]
Decided on December 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570772/11.

Excellent Care Physical Therapy, P.C. a/a/o Shawn Thompson, O’Neko Venson, Plaintiff-Respondent, – –

against

Motor Vehicle Accident Indemnification Corporation, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated November 29, 2010, which denied its motion for summary judgment dismissing the claim relating to plaintiff’s assignor, O’Neko Venson.


Per Curiam.

Order (Elizabeth A. Taylor, J.), dated November 29, 2010, affirmed, with $10 costs.

This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal. Defendant MVAIC did not meet its threshold burden to establish that plaintiff’s assignor (Venson) was not a “qualified person” entitled to no-fault coverage (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]). On this record, and given that defendant’s own proof includes a denial of claim form from the putative insurer – stating that the vehicle in which plaintiff’s assignor was a passenger was not insured on the date of the underlying accident – defendant failed to establish prima facie that there was a policy of insurance in effect at the time of the accident.

Nor was the assignor’s apparent failure to submit a household affidavit shown to be fatal to plaintiff’s claim on the existing record, which contains no indication that defendant timely objected to the adequacy of plaintiff’s claim form or timely sought verification of the claim (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 06, 2012