January 28, 2022

BNE Clinton Med., P.C. v MVAIC (2022 NY Slip Op 50058(U))

Headnote

The assignor was ineligible for MVAIC benefits because the stepfather's automobile policy insured relatives residing in the same household. The Appellate Term, Second Department, reversed the order and granted MVAIC summary judgment dismissing the provider's complaint. The motion papers established that the assignor lived with the stepfather and was an insured under the policy, rather than a qualified person under Insurance Law § 5202 (b). The court rejected the provider's argument, accepted below, that being over 18 excluded the assignor from coverage. Neither the policy nor the mandatory personal injury protection endorsement in 11 NYCRR 65-1.1 limited coverage based on relatives' ages.

Reported in New York Official Reports at BNE Clinton Med., P.C. v MVAIC (2022 NY Slip Op 50058(U))

[*1]
BNE Clinton Med., P.C. v MVAIC
2022 NY Slip Op 50058(U) [74 Misc 3d 128(A)]
Decided on January 28, 2022
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-466 K C

BNE Clinton Medical, P.C., as Assignee of Gregory Diaz, Respondent,

against

MVAIC, Appellant.


Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered January 21, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not a “qualified” person.

Upon a review of the record, we find that the motion papers establish that plaintiff’s assignor was not a “qualified” person entitled to benefits from MVAIC, as he resided in the same household as his stepfather who had an automobile insurance policy which provided that relatives who reside in the same household were also insureds under the insurance policy (see Insurance Law § 5202 [b]; Smith v Pennsylvania Gen. Ins. Co., 32 AD2d 854 [1969], affd 27 NY2d 830 [1970]). To the extent plaintiff argued, and the Civil Court held, that plaintiff’s assignor was not an insured because he was [*2]over 18 years of age, neither the insurance policy nor the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) limits coverage based upon the age of relatives. In light of the


foregoing, MVAIC’s motion for summary judgment dismissing the complaint should have been granted (see Longevity Med. Supply, Inc. v MVAIC, 64 Misc 3d 143[A], 2019 NY Slip Op 51276[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Island Life Chiropractic Pain Care, PLLC v MVAIC, 62 Misc 3d 148[A], 2019 NY Slip Op 50226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; T & S Med. Supply Corp. v MVAIC, 58 Misc 3d 131[A], 2017 NY Slip Op 51755[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.



ENTER:

Paul Kenny


Chief Clerk
Decision Date: January 28, 2022

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