November 30, 2018

Acupuncture Approach, P.C. v MVAIC (2018 NY Slip Op 51776(U))

https://www.beynensonlaw.com/case-law/acupuncture-approach-p-c-v-mvaic-2018-ny-slip-op-51776u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51776(U)
Posture: Trial
Outcome: Insurer prevailed
Issues: MVAIC Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case at trial · MVAIC eligibility: qualified covered person (see the maps)

Cite as

Acupuncture Approach, P.C. v MVAIC, 2018 NY Slip Op 51776(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A claimant seeking no-fault benefits from MVAIC must establish timely filing of an affidavit giving notice of intention to claim. Following Avicenna Med. Arts, P.L.L.C. v MVAIC, the Appellate Term, Second Department, treated filing as a condition precedent under Insurance Law § 5208 (a) (1) and (3) and § 5221 (b) (2). The provider did not establish submission of the affidavit and therefore failed to prove its prima facie case that the assignor was a covered person. The court reversed the provider's judgment after a nonjury trial and remitted for entry of judgment dismissing the complaint in MVAIC's favor. It separately dismissed the appeal from the decision under CCA 1702.

Reported in New York Official Reports at Acupuncture Approach, P.C. v MVAIC (2018 NY Slip Op 51776(U))

[*1]

Acupuncture Approach, P.C. v MVAIC

2018 NY Slip Op 51776(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1235 K C

Acupuncture Approach, P.C., as Assignee of Richard Walker, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), dated February 18, 2015, and from a judgment of that court entered January 12, 2016. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $723.54.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $723.54.

“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its [*2]prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Insufficient at trial for another reason (MVAIC eligibility, assignment, eligibility for benefits)

Held after trial that the provider failed to make out its prima facie case against MVAIC because it did not establish that a timely notice-of-intention affidavit had been submitted, a condition of covered-person status.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 93 decisions on this question in the Second Department courts and the Court of Appeals, 25 (this one included) are in the same category.

MVAIC eligibility: qualified covered person

Open the full map

Against MVAIC, was the claimant shown to be a qualified, covered person meeting article 52’s conditions?

This decision: Eligibility is treated as the claimant's burden / condition precedent and the claimant did not prove it; claim fails or is premature

Held that a timely affidavit of intention to claim is a condition precedent to covered-person status and that the provider, having not shown one was submitted, failed its prima facie case, so the complaint was dismissed.

Found not eligibleClaimant's proof lackingMVAIC failed to proveFound eligibleUnresolved / for trialDefense precluded/waivedThis decisionCites it or cited by itCited or followed

Of the 223 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Avicenna Med. Arts, P.L.L.C. v MVAIC (2016 NY Slip Op 51535(U)) FollowedThe provider failed at trial to establish submission of the notice-of-intention affidavit required for no-fault recovery from MVAIC. Its billing manager testified that the claims had been mailed, and the Civil Court awarded judgment after a nonjury trial.

Similar decisions

Bronx Acupuncture Therapy, P.C. v MVAIC (2019 NY Slip Op 51253(U))The provider failed to establish its prima facie case against MVAIC because it did not prove submission of a timely notice-of-claim affidavit.
Lantsman Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50568(U))A timely notice-of-intention affidavit is a condition precedent to recovering no-fault benefits from MVAIC. Under Insurance Law § 5208 (a) (1) and (3) and Insurance Law § 5221 (b) (2), compliance with the filing requirement must be established to show that the claimant is a covered person entitled to benefits.
Forest Park Acupuncture, P.C. v MVAIC (2018 NY Slip Op 50768(U))MVAIC established that no timely notice to make claim was filed, leaving the assignor outside covered-person status.
Oleg’s Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50593(U))MVAIC established nonreceipt of the notice-of-intention affidavit required for the provider to recover assigned no-fault benefits.
GL Acupuncture, P.C. v MVAIC (2017 NY Slip Op 51866(U))MVAIC established that no timely notice of claim had been filed, leaving a condition precedent to no-fault payment unsatisfied.