Exclusive Med. Supply, Inc. v MVAIC (2012 NY Slip Op 50616(U))

Reported in New York Official Reports at Exclusive Med. Supply, Inc. v MVAIC (2012 NY Slip Op 50616(U))

[*1] Decided on April 11, 2012

Exclusive Medical Supply, Inc., a/a/o Pierre Yango, Plaintiff, against MVAIC, Defendant.

67806/09



Appearances by:

Attorneys for Plaintiff

Law Offices of Florence D. Zabokritsky, P.L.L.C.

45 Main Street, Suite 539

Brooklyn, NY 11201

Attorneys for Defendant

Cruz & Gangi and Associates

110 William Street, 19th Floor

New York, NY 10038

Harriet L. Thompson, J.

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ………………………………. ..1, 2

Order to Show Cause and Affidavits Annexed ____________

Answering Affidavits ..______3____

Replying Affidavits ._____________

Exhibits _____________

Other …………………………………………………._____________

This action was commenced by service of a summons and complaint to recover no-fault benefits allegedly incurred by the Plaintiff Assignor as a result of alleged injuries arising out of an automobile accident on August 23, 2006. In or about August 6, 2009, the Defendant interposed an answer which raised various affirmative defenses, and concomitantly, served demands for discovery. [*2]

In or about May 31, 2011, the Plaintiff moved this court for an order pursuant to CPLR §3212 for summary judgment, or alternatively, for partial summary judgment. The Plaintiff avers that its has established its prima facie case by the submission of admissible evidence demonstrating that the billing documents were mailed and received by the Defendant and payment thereof is overdue. The Plaintiff produces an affidavit of its Billing Manager and Custodian of Records, Serge Magdyuk, who attests to his first-hand knowledge of the Plaintiff’s business office procedures for the generation of bills and the mailing procedures of the bills. Mr. Magdyuk states that the respective bills for durable medical equipment provided to the assignor were properly mailed to the Defendant on or about November 8, 2006, November 13, 2006 and February 9, 2007, respectively. Additionally, as shown in Plaintiff’s exhibit C to the motion, the Plaintiff produced its bills and assignment of benefits form.

The Defendant, by cross-motion dated August 5, 2011, seeks summary judgment and dismissal of the complaint pursuant to Articles 51 and 52 of the Insurance Law. The Defendant argues that the Assignor is not a “qualified person” entitled to insurance coverage by MVAIC. The Defendant’s Qualifications Examiner affirms that on or about January 29, 2007, MVAIC received durable medical equipment bills for the first and second causes of action and subsequently, on or about February 16, 2007 received durable medical equipment bills for the third cause of action. The Defendant asserts that on January 29, 2007, February 16, 2007, March 19, 2007 and May 5, 2007, the Defendant mailed Plaintiff a request for a “notarized statement from UV owner about the relation to applicant and permission to drive.” (Defendant’s exhibit D) The Defendant argues that as a condition precedent to coverage by MVAIC, the Plaintiff is mandated to provide the aforementioned sworn statement in order to be deemed a “qualified person”. The Defendant further avers that although the Notice of Intent to Make a Claim states that the vehicle is owned by Rolle Maquinzi, the Plaintiff states in the detailed description of the accident that the second vehicle “hit my car” which has been interpreted by MVAIC to imply that the vehicle may be stolen, and if not stolen, a sworn statement must be provided that there was consent by the owner to operate the vehicle. The Defendant proffers that the offending vehicle may be registered to Rolle Maquinzi but could be owned by the Plaintiff or it could be a stolen vehicle.

The Defendant relies on Section 5202(b) of the Insurance Law which provides in relevant part that the Plaintiff must not be the owner of the uninsured vehicle to meet the qualifications standards to be deemed a “qualified person” for MVAIC coverage. Moreover, the Defendant relies on Insurance Law 5103(b)(3)(iii) which provides that MVAIC may deny coverage to a person who is operating or occupying a motor vehicle known to him to be stolen.

In opposition to the cross-motion and in further support of their motion, the Plaintiff argues that Appellate authority supports their proposition that the affidavit sought by the Defendant to determine that the Plaintiff is a qualified person lacks merit as a matter of law; that the Defendant failed to establish proper verification to toll the statutory time to pay or deny the medical services bills; that the alleged verification was vague and ambiguous; and that the Defendant failed to properly rebut the prima facie case of the Plaintiff and accordingly, the Plaintiff is entitled to judgment as a matter of law.

[*3]

The Plaintiff must prove the facts necessary to establish its claims. In addition, the Plaintiff must prove that the amount of loss sustained were mailed to the Defendant and received by the Defendant, and that payment of the no-fault benefits were neither paid or denied within thirty (30) days of receipt. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dep’t, 2004); see also Westchester Med. Center v Liberty Mutual Ins. Co., 40 AD3d 981 (2nd Dep’t, 2007); Insurance Law 5106(a). More recently, the Appellate Term determined in the matter of Ave T MPC Corp v. Auto One Ins. Co., 32 Misc 3d 128(A) [2011] and its progeny as discussed below that in addition to the aforementioned prima facie elements, the Plaintiff, in a case where the defendant has issued a denial of basic economic loss attributed to the automobile accident, the Plaintiff must also substantiate that the denial was untimely or “that the defendant has issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law §5106[a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2010]; see also New York Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006].” See also Superior Oxygen & Othro Supplies, Ltd. V. Auto One Ins. Co., 2012 Slip Op 50348(U).

In the Plaintiff’s case herein, the Billing Manager and Custodian of Records has described in sufficient detail his personal knowledge of the office practices and procedures employed by the Plaintiff and more importantly, he attests that he personally mailed the bills for services rendered to the Assignor in this case. He further states that he retained copies of the proof of mailing of the bills and “the original post office pages are available for inspection and copying by those with need”. (Affidavit of Serge Magdyuk at 16 in Plaintiff’s exhibit B). However, the Plaintiff did not offer any proof of the mailing notwithstanding this open representation. Nevertheless, the Court finds that Billing Manager’s attestation of mailing is reliable and sufficient.

Although Plaintiffs in these cases, more often than not, have resorted to reliance on the written denials (NF-10) of the insurer to substantiate proof of mailing of the bills and receipt by the insurer, the instant motion does not contain any such denial(s). The affidavit of the Billing Manager explicitly states “the denials that are annexed to the instant motion are the denials (NF-10’s) that were actually received by our office. In particular, the denials at issue in this action were received, kept and relied upon by Plaintiff as part of Plaintiff’s ordinary course of business” (Affidavit of Serge Magdyuk at 18 in Plaintiff’s exhibit B). Ironically, this court finds no admissible evidence from the Plaintiff or the Defendant to substantiate that the bills of the provider were ever denied in this case. However, this court can presume this fact based on the claims made by the Defendant that the Plaintiff’s Assignor did not yet qualify for MVAIC benefits. Under these circumstances and the above case authority, the Plaintiff would be required to prove that the denials were untimely or “that the defendant has issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law §5106[a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168[2010]; see also New York Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006]).” Since this presumed new element of the prima facie has been evolving in the courts and clear case precedent was not firmly rooted in the law at the time of the submission of this motion, this court will not unduly prejudice the Plaintiff by denying this motion on this ground.

Turning our attention to the cross motion for summary judgment by the Defendant.

First, the Defendant acknowledged receipt of the bills of the provider on January 29, 2007 and February 16, 2007 (Defendant erroneously states February 26, 2006 in the supporting affirmation and affidavit). Subsequently, the Defendant states that on January 29, 2007, February 16, 2007 and [*4]March 5, 2007, the Defendant requested an affidavit from the PROVIDER (emphasis added) in pertinent part as follows:

” Please be advised that before an applicant is entitled to No-Fault benefits from MVAIC the injured person must meet the requirements of a “qualified person” pursuant to Article 52 of the New York State Insurance Law. At this time, the captioned applicant/patient has not yet been qualified….The following is (are) required to qualify this person. If you are able to provide the documents/information, it will assist in meeting the requirements for qualification.

Notarized statement from UV owner about relation to applicant and permission to drive.

If and when the applicant qualifies for benefits from MVAIC, you will be advised and we will begin the processing of your bills. If other coverage is found to exist, making the applicant ineligible for benefits from MVAIC the applicant and the applicant’s attorney will be advised of the proper carrier.

We recommend that you continue to submit bills so they will not be time-barred if the injured person is qualified.”

The Appellate Term and the Appellate Division in the Second Department have consistently determined that MVAIC, notwithstanding its public benefit corporation status, is not relieved of the obligations to comply with the No-Fault Insurance Law and regulations.

Let us examine a small part of that history here. This court must acknowledge that some of this history appears in the most recent decision of the Appellate Division in the matter of Englington Medical, P.C. v. MVAIC, 81 AD3d 223, 916 N.Y.S.2d, 122 (AD 2nd Dept.) However, this court will add a few other pertinent matters and its interpretations.

The New York State Legislature created MVAIC as a public benefit corporation to “provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle” (See Title and Purpose set forth in Section 5201 of the Insurance Law).

The Legislature declared that the no-fault law “which requires the owner of a motor vehicle to furnish proof of financial security as a condition to registration, fails to accomplish its full purpose of securing innocent victims of motor vehicle accidents recompense for their injury and financial loss inflicted upon them, in that the act make no provision for the payment of loss on account of injury to or death to persons who, through no fault of their own, were involved in motor vehicle accidents caused by”… uninsured motorist; those that leave the scene of the accident; those with cancelled policies of insurance; those involved in accident in stolen vehicles; those vehicles operated without permission of the owner; those where insurance is disclaimed or denied by their insurer… and those involving unregistered motor vehicles. (See Insurance Law §5201(1)-(7)).

To accomplish this purpose, the Legislature further provided for a comprehensive and detailed procedural regulatory scheme that describes the rights and obligations of MVAIC as a public benefit corporation to “close the gap” to assure compensation to innocent victims referred to statutorily as “qualified persons” in motor vehicle collisions. Mejia v. Santos, 10 Misc 3d 831, 805 N.Y.S. 2d 269 (2005).

The no-fault provision of the law, namely Insurance Law §5221(b)(1), provides in relevant part that MVAIC “shall also provide for the payment of first party benefits to a qualified person for basic economic loss arising out of the use or operation in this state of an uninsured motor vehicle.” [*5]

In accordance with Section 5202 of that law, a “qualified person” is a resident of the state (excluding persons with automobile insurance or the owner of an uninsured vehicle and his or her spouse) or a resident of another state…in which recourse is afforded, to residents of this state of a similar character to that provided for in Article 52. Stated simply, the party must not have any insurance to cover the stated claim and is of the nature contemplated by the statute as described above. Suffice to say, there are numerous cases which involve the sole issue of whether the claimant is a qualified person under the meaning of the statute which is not a topic of concern for the purposes of this decision.

Despite repeated challenges by the MVAIC to persuade the courts that the time frames and statutory framework of the No-Fault Law as prescribed in Section 5106 (a) of the Insurance Law and implemented by regulation, namely, 11 NYCRR 65 et seq are not applicable to MVAIC, it has been held that MVAIC is time bound by the same 30-day time requirements as any other insurer.

The Appellate Division Second Department in New York Hosp. Medical Center of Queens v. MVAIC, 12 AD3d 429, 784 N.Y.S.2d 593, leave to appeal denied at 4 NY 705, 792 N.Y.S. 2d 898, 825 N.E.2d 1093 (AD 2nd Dept., 2004) reasoned that “[w]e reject the Defendant’s contentions that the 30-day time requirement contained in 11 NYCRR 65.15 (g)(3) does not apply to it until after it has “qualified” the uninsured party. To permit the Defendant to obviate the 30-day time requirement would frustrate the purpose and objective of the No-Fault Law “to assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them (Dermatossian v. New York City Tr. Auth., 67 NY2d 219, 225 [1986]). It would also frustrate the purpose and objective of 11 NYCRR 65.15(g)(3) to determine otherwise since the primary intention of the law is “to provide a tightly timed process of claim, disputation and payment” (Presbyterian Hosp. In City of NY v. Maryland Cas. Co., 90 N.Y.S, 274, 281 [1997]).

This general rule of law and supporting principle has also been promulgated by the Appellate Term Second Department in Complete Medical Services, P.C. v. MVAIC, 20 Misc 3d 85, 864 N.Y.S.2d 665 wherea unanimous panel found that the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether there has been a determination that the assignor is a “qualified person” within the meaning of Section 5202(b) of the Insurance Law. See NY Hosp. Med. Ctr of Queen, supra. The court specifically held that the failure of the claimant to submit a police report or comply with other reporting requirement of the Insurance Law did not abrogate the claimant’s rights to benefits under the No-Fault Law. The Courts’ rationale, in part, was that “the Plaintiff’s assignor’s status as a qualified person is not dependent upon defendant’s receipt of a copy of the police report” citing Insurance Law Section 5202[2].

See also Q.C. Farragut Corner Medical, P.C. v. MVAIC, 32 Misc 3d 137(A), 936 N.Y.S.2d 58 (AT 2nd Dept., 2011) holding that MVAIC’s claims that the assignor was not a qualified person entitled to benefits since she failed to provided an affidavit of her household composition lacked merit. Liberty Orthopedics, PLLC v. MVAIC, 20 Misc 3d 136[A] Slip Op 51533[U] [App Term, 2nd and 11th Jud Dists, 2008]. Lastly, see also Intuitive Chiropractic, P.C. v. MVAIC, 2012 WL 326699 where it was determined that the assignor’s failure to provide MVAIC with a household affidavit or written proof of lack of insurance also lacked merit since the “plaintiff’s assignor’s status as a qualified person is not dependent upon MVAIC’s receipt of those documents.” The Court thereafter affirming summary judgment for Plaintiff as a matter of law. [*6]

Now looking at the most recent case from the Appellate Division Second Department in the matter of Englington Medical, P.C. v. MVAIC, 81 AD3d 223, 916 N.Y.S.2d 122 (2011), Justice Lowenthal, writing for the court in a well written decision, reaffirmed this rule of law. In Englington, the medical service provider filed an action against MVAIC seeking first-party no-fault medical payments. The court specifically stated that the court was required to consider the nature of proof that MVAIC was required to present on a motion for summary judgment to support it claims that a person injured by a hit and run accident was not a qualified person under the above provision of the Insurance Law since at the time of the accident that person owned and was allegedly operating an uninsured motorcycle.

In its motion and responding answer, MVAIC claimed that the assignor was not a qualified person since the vehicle was owned and operated by her at the time of the accident; that she was operating a motorcycle and motorcycle drivers are not entitled to No-Fault benefits and more importantly for our analysis, MVAIC was not required to issue a timely denial of coverage because no coverage existed.

The Plaintiff argued that MVAIC did not meet its burden of proof on the motion for summary judgment because it did not submit any proof that the Plaintiff was operating a motorcycle at the time of the accident. The Plaintiff also argued that the vehicle operated by the Plaintiff at the time of the accident was a minibike which did not require insurance and MVAIC failed to pay or deny the claim within the statutory 30 days. The lower court denied the motion and MVAIC appealed.

Notwithstanding MVAIC’s claim that the Civil Court erred in denying its motion based on its failure to timely disclaim coverage, MVAIC asserted that there was no duty to not timely disclaim coverage, or to pay or deny the medical benefits because there was a lack of coverage in the first instance.

After an analysis of the insurance law particularly defining motorcycles (which are not entitled to No-Fault benefits), the court determined that “on its motion for summary judgment, MVAIC has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgement as a matter of law… and to meet its burden, MVAIC was required to establish, prima facie, that Cruz was NOT a “qualified person” entitled to No-Fault benefits either because she owned an uninsured vehicle despite being statutorily required to carry insurance, or because, at the time of the accident, she was operating a “motorcycle” within the meaning of Insurance Law Section 5102(m)”. The Court went on to further state that “MVAIC’s burden on the motion for summary judgment cannot be satisfied by merely pointing out gaps in the plaintiff’s case (see e.g., Shafi v. Motto, 73 AD3d 729, 730, 900 N.Y.S.2d 410; Gamer v. Ross, 49 AD2d 598, 600 854 N.Y.S.2d 160; Totten v. Cumberland Farms, Inc., 57 AD3d 653, 654, 871 N.Y.S.2d 179; DelFalco v. BJ’s Wholesale Club, Inc., 38 AD3d 824, 825, 832 N.Y.S.2d 632)”.

Although MVAIC argued in that case that they were entitled to judgment as a matter of law because the case involved a hit and run accident in which the claimant was issued three traffic violations for the use of the vehicle, the court found that those summonses were simply allegations and were insufficient to establish that the vehicle operated by the Plaintiff was required to have insurance. Since MVAIC failed to meet its prima facie burden on its motion for summary judgment, the burden never shifted to Englington to submit in admissible form, evidence sufficient to raise a triable issue of fact. According to the court, this was the case despite the contentions by MVAIC that the assignor had the burden of proving that Cruz’s vehicle was not required to have insurance. The [*7]court concluded that the evidence in the case demonstrated that the Plaintiff was uninsured at the time of the accident and MVAIC did not demonstrate her vehicle required insurance and the type of vehicle that Cruz was operating had not been established by any party.

In the case at bar, MVAIC argues that the Plaintiff’s assignor is not a qualified person . The burden of proof to establish that the Plaintiff is not a qualified person was shifted to MVAIC at the time that the Plaintiff submitted its motion for summary judgment asserting that MVAIC failed to comply with Insurance Law Section 5106 and its implementing regulations by failing to pay or deny its claim within 30 days.

In the first instance, as provided above, MVAIC served on the alleged attorney for the assignor, Yitzchok S. Diamond, two pre-litigation notices dated October 12, 2006 and November 16, 2006 demanding the above information. Both notices were also sent to the assignor, Yango Pierre. The MVAIC notice acknowledged the receipt of the Notice to Intention to Make Claim submitted by the alleged attorney of the assignor and requested the following: “[a] Notarized statement from UV owner about relation to applicant and permission to drive.” MVAIC proffers to the court in its Cross Motion in paragraphs 25-27 that “[a]lthough he (assignor) states the vehicle was owned by Rolle Maquinzi, the applicant states in box 8 that the second vehicle “hit my car”. See Exhibit “E” and …that “[b]y stating that the second vehicle “hit my car” instead of referring to it as the vehicle implies that it was either owned by the assignor or could have been stolen”.

MVAIC appears to claim that its qualification letter should be deemed a verification request. However, a perusal of the qualification letter above allows this court to easily dispose of this claim. The Insurance Law and regulations are clear that an insurer has thirty days from the date of receipt of a notice of claim for first party no-fault benefits to pay or deny the claim. 11 NYCRR 65-3.8(a)(1). It is also clear that the time to pay or deny the claim can be tolled by the insurer making a request for verification within 15 business days from the receipt of the claim. Hospital for Joint Disease v. New York Central Mutual Fire Ins., 44 AD3d 903 (2nd Dept. 2007); 11 NYCRR 65-3.5(a). If the verification information is not forth coming from the claimant, the insurer must follow up by telephone call (unwise choice in this volatile area) or by mail within 10 calendar days. 11 NYCRR 65-3.5(b).

It has been firmly established that an insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 ( 2nd Dept., 2008); New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D3d 512 (2nd Dept., 2006). Verification extends the time for the insurer to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of the claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008).

Delay letters have been confused with verification and verification is often obscure. In Ocean Diagnostic Imaging P.C. v. Citywide Auto Leasing Inc., 8 Misc 3d 138 (A),. 2005 Slip Op 51314[U], the Appellate Term Second Department, held that “an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period.” See also the recent matter of Superior Oxygen & Othro Supplies, Ltd. v. Auto One Ins. Co., 2012 NY Slip Op 50348(U). [*8]

In this case, the qualification letter is just that. It seeks to qualify the applicant for MVAIC benefits and does not seek to verify the economic loss or claims of the Plaintiff assignor. It was also mailed to the Assignee and not the Assignor, although a copy was sent to the Assignor as noted on the bottom of the letter. Although the Assignee stands in the shoes of the Assignor, the information requested falls within the actual and personal knowledge of the Assignor. How does the Assignee have knowledge of any of the information requested? This court would answer that the Assignee lacks any knowledge of these requested facts.

The qualification letter does not seek to verify the validity or content of the claim as required by statute, regulation and case authority, but to determine if the applicant is qualified for MVAIC benefits. Since the statutory time frames to pay or deny the claim were not tolled based on this improper alleged verification, MVAIC did not raise a triable issue of fact.

Furthermore, this court is of the opinion that the qualification notice to the Assignee with a copy to the Assignor for coverage by MVAIC is not only overly broad, vague and ambiguous, but is unsupported by any of the facts in the case and certainly not substantiated by the facts as stated in the Notice to Intention to Make Claim. MVAIC’s assertions are purely speculative. There is absolutely no evidence in the record that would support the suspicions’ of MVAIC that the vehicle may have been stolen, driven without the authorization and consent of the owner or that the driver is the owner of the vehicle.Secondly, after service of the summons and complaint, in or about August 6, 2009, MVAIC appeared in this action by counsel and interposed a verified answer which contained a general denial and sixteen affirmative defenses to the complaint. Notably, in conjunction with the answer, MVAIC served a demand for written interrogatories, a notice for discovery and inspection, a demand for collateral source information, a demand for expert witness disclosure and a notice of declination of service by facsimile. Despite the fact that MVAIC, in aforementioned pre-litigation notice to the applicant, demanded the above proof as a condition precedent to coverage, MVAIC never seeks disclosure or makes any discovery demands for this alleged vital factual and/or documentary evidence from the Plaintiff Assignor or Assignee for qualification for benefits.

This court, upon a review of the discovery demands, most of which are irrelevant and duplicative, did not find any reference whatsoever for a demand of disclosure of the relationship between the “UV owner” and the applicant, or for proof of any authorization and consent for the operation of the motor vehicle by the Plaintiff assignor. MVAIC was obligated to demand this information prior to any other request for discovery. If MVAIC had requested disclosure of this information in the first instance, the Assignor may have been deemed qualified or unqualified for payment of the No-Fault benefits. Instead, MVAIC took no action whatsoever for nearly three years until the Plaintiff moves for summary judgment and only then did MVAIC cross move for summary judgment.

Furthermore, MVAIC, pursuant to 3126 of the CPLR, could have moved for affirmative relief from the court for sanctions for noncompliance with discovery including an order finding that this issue of qualification is granted in favor of MVAIC; preclusion of evidence or testimony; striking the pleadings; an order for a stay pending production; dismissal or judgment against Plaintiff on default. MVAIC did not move for any CPLR §3126 relief.

As important, MVAIC could have requested verification of this information in proper form within the statutory time period which would have tolled the time to approve or deny the claims so that the Plaintiff could be examined for coverage. MVAIC also did not demand an examination [*9]under oath (EUO) of the Plaintiff’s Assignor that could have disclosed this information. MVAIC did not request any verification whatsoever in this matter.

Based on the fact that MVAIC failed to meet its burden of proving that the Plaintiff assignor is not a qualified person and did not comply with the No-Fault Law and regulations, their motion to dismiss the complaint and for summary judgment is denied in its entirety.

Lastly, despite the above case authority, MVAIC continues to assert that the Plaintiff must be qualified within the meaning of the Insurance Law prior to making any payments of No-Fault benefits. MVAIC should refrain from asserting this type of claim in No-Fault cases. As of the date of this decision, the Appellate Division and Appellate Term Second Department, and the Civil Court in Kings County have properly determined that the No-Fault Laws and regulations are applicable to MVAIC and their compliance is mandatory as a matter of state law.

Even though MVAIC was created as a public protection agency, their act(s) and omission(s) in this case and in the cases cited above are in contravention of their legislative purpose and public mission. The people of this state are entitled to their compliance with the law, their good faith efforts and their competent representation to protect the statutorily created rights as described in the Insurance Law and regulations, and not to discourage and impede coverage provisions for innocent victims of irresponsible uninsured motorist. As equally compelling to this court, the waste of judicial time and resources with this kind of valueless motion practice in these kinds of cases should be absolutely avoided and this court openly discourages it at all costs particularly in light of the present budgetary constraints in the judiciary that was created by the one of the worst economic downturns in the history of this great state and nation.

For all of the reasons stated above, the Plaintiff’s motion for summary judgment is granted and accordingly, the Plaintiff is entitled to judgment as a matter of law. The Clerk of the Court shall enter judgment in the sum of $1,233.00 as stated in the summons and complaint, together with statutory interest from the date of filing of the complaint, statutory attorney fees, costs and disbursements.

The Plaintiff shall serve a copy of this Order with notice of entry on the Defendant within 30 days of the date of this order and shall file proof of service on the Defendant thereafter with the Clerk of this Court.

The foregoing constitutes the Decision and Order of this Court.

____________________________________________________________________ _

DateHon. Harriet L. Thompson

Judge of the Civil CourtState Farm Mut. Auto. Ins. Co. v Young (2012 NY Slip Op 50686(U))

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Young (2012 NY Slip Op 50686(U))

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50685(U))

Reported in New York Official Reports at Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50685(U))

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50678(U))

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Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 50677(U))

[*1] Decided on April 10, 2012

PRESENT: : PESCE , P.J., WESTON and RIOS, JJ
2009-734 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 19, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment.

The affidavit submitted by plaintiff’s billing and collection supervisor in support of plaintiff’s motion for summary judgment was insufficient to establish plaintiff’s prima facie case (see CPLR 4518 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 10, 2012East-West Acupuncture v Safeco Ins. Co. of Ind. (2012 NY Slip Op 22095)

Reported in New York Official Reports at East-West Acupuncture v Safeco Ins. Co. of Ind. (2012 NY Slip Op 22095)

Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50590(U))

Reported in New York Official Reports at Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50590(U))

Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 50589(U))

Reported in New York Official Reports at Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 50589(U))

Med-Tech Prods., Inc. v Statewide Ins. Co. (2012 NY Slip Op 50584(U))

Reported in New York Official Reports at Med-Tech Prods., Inc. v Statewide Ins. Co. (2012 NY Slip Op 50584(U))