December 5, 2006

Akita Med. Acupuncture P.C. v MVAIC (2006 NY Slip Op 52340(U))


The court considered the facts of a motor vehicle accident on January 27, 2003, and subsequent acupuncture treatments received by the injured party, along with the requirement to provide timely notice of claim to the defendant, Motor Vehicle Accident Indemnification Corporation (MVAIC). The main issue decided was whether the plaintiff fulfilled the reporting requirements of Insurance Law Article 52, specifically the requirement to provide a police report and notarized household affidavit to MVAIC to qualify for benefits. The holding of the court was that the plaintiff failed to establish that the claimant was a "covered person" entitled to MVAIC benefits by not timely filing a proper notice of claim, and therefore, the defendant's motion for summary judgment was granted, resulting in the dismissal of the plaintiff's cause of action for unpaid medical bills in the amount of $1,080.00.

Reported in New York Official Reports at Akita Med. Acupuncture P.C. v MVAIC (2006 NY Slip Op 52340(U))

Akita Med. Acupuncture P.C. v MVAIC (2006 NY Slip Op 52340(U)) [*1]
Akita Med. Acupuncture P.C. v MVAIC
2006 NY Slip Op 52340(U) [13 Misc 3d 1244(A)]
Decided on December 5, 2006
District Court Of Nassau County, First District
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through December 7, 2006; it will not be published in the printed Official Reports.
Decided on December 5, 2006

District Court of Nassau County, First District

Akita Medical Acupuncture P.C. A/A/O FLERIDA ERAZO, Plaintiff(s)


MVAIC, Defendant(s)


Morris, Duffy, Alonso & Faley

La Sorsa & Beneventano

Randy Sue Marber, J.

The defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter “MVAIC”), moves for an order granting summary judgment and dismissing the plaintiff’s complaint, pursuant to CPLR §3211 and 3212. The plaintiff, opposes the motion and the defendant has served a reply.

The plaintiff’s assignor, Flerida Erazo, was allegedly involved in a motor vehicle accident on January 27, 2003. Specifically, it is alleged that Ms. Erazo was a pedestrian when she was struck by an unknown vehicle. Thereafter, on January 31, 2003, February 3, 2003, February 7, 2003, February 10, 2003, February 15, 2003, February 22, 2003, February 27, 2003 and March 14, 2003, Ms. Erazo received acupuncture treatment from the plaintiff, Akita Medical Acupuncture, PC. An assignment of benefits was executed on January 31, 2003 (see, Exhibit “C”). On or about December 15, 2003, the plaintiff alleges that it submitted claims for no-fault payments to MVAIC and mailed them to MVAIC at 110 William Street, New York, NY 10038. To date, the plaintiff claims that no payment has been made, nor has there been a valid, timely denial or a proper request for additional verification. The plaintiff instituted this action to recover unpaid medical bills in the sum of $1,080.00. The plaintiff submits that it filed a notice of intention to make a claim with MVAIC. However, in opposition, the defendant alleges that the plaintiff failed to satisfy a condition precedent to coverage, thus it was not required to issue a denial or payment.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, in directing judgment in its favor (see, CPLR §3212[b]). The [*2]burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial (see, CPLR §3212[b]; see also, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In the instant motion, the defendant alleges that “…coverage was nonexistent with MVAIC as plaintiff’s assignor failed to comply with the reporting requirements of Insurance Law Article 52, by neglecting to provide (a) a police report; and (2) a notarized household affidavit, a prerequisite to MVAIC coverage…” (see, Affidavit of David Shnayderman). Accordingly, the defendant has made out a prima facie showing of its entitlement to summary judgment as a matter of law.

In opposition, the plaintiff, in an effort to meet its burden of raising a triable issue of fact, asserts that it satisfied the condition precedent to qualify for MVAIC benefits because it failed its notice of claim within 180 days of the accrual of the cause of action. The claim form was mailed to MVAIC, on or about December 15, 2003, requiring MVAIC to pay or timely deny the bill. The plaintiff applies the standard generally applied in Insurance Law Article 51 actions. In a no-fault insurance action, a medical provider must submit evidentiary proof that the appropriate claim forms were mailed, that the forms were received by the insurer and that the payment of no-fault benefits was overdue (see, Mary Immaculate Hospital et al v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept 2004]; see also, 11 NYCRR §65-3.3[d]; §65-3.5[a]). However, here, prior to a review pursuant to Article 51, the plaintiff must first comply with Article 52.

The purpose of MVAIC is to pay bodily injury damages and no-fault benefits to “qualified”victims of motor vehicle accidents caused by uninsured motorist. In order to recover MVAIC benefits, the injured party must be eligible for MVAIC benefits, which requires that the party not have any other available insurance covering its claim and that the accident is of the nature contemplated by MVAIC. Upon proving that the claimant’s accident was of a type contemplated by MVAIC, the injured party must then be a “qualified person”, defined by MVAIC, as “…someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle.”

A qualified person is required to provide MVAIC with notice of the claim. Insurance Law §5208(2)(a), “Notice of Claim”, states, in relevant part:

(A) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace, or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:…

(B) The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon [*3]as was reasonably possible.

Once a qualified person has complied with the requirements of Insurance Law Article 52, then that person will be considered a covered person and will be entitled to the rights that a person under Insurance Law Article 51 is entitled to regarding no-fault benefits.

MVAIC is a statutory creation designed to provide no-fault benefits to injured individuals only when there is no other insurance available. In this case, the claimant has not provided the defendant with a copy of the police report regarding this accident, or otherwise provided the defendant with proof that the claimant complied with any of the other report requirements pursuant to Article 51. Since the claimant has not verified that the alleged accident ever occurred or that it was reported to the police within 24 hours, the claimant is not qualified to receive MVAIC benefits.

This Court finds that complying 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” (see, A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U, 2-3 (NY Misc 2006); Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137A, 308 NYS2d 19, 2005 NY Slip Op 51271U [App Term, 2d & 11th Jud Dists]). Accordingly, MVAIC’s failure to timely deny plaintiffs’ claims does not preclude the dismissal of the plaintiffs’ causes of action based upon lack of coverage (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199-200, 681 NE2d 413, 659 NYS2d 246 [1997]).

Accordingly, the defendant’s motion for summary judgment is granted and the cause of action for $1,080.00 is dismissed.

So ordered:


Dated:December 5, 2006