December 8, 2017

Compas Med., P.C. v MVAIC (2017 NY Slip Op 51734(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-mvaic-2017-ny-slip-op-51734u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51734(U) · 58 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Compas Med., P.C. v MVAIC, 58 Misc 3d 129(A), 2017 NY Slip Op 51734(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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.

The provider's claim against MVAIC was dismissed because the van's driver and owner might be ascertainable. The assignor's EUO testimony indicated that the allegedly injuring van remained until police arrived and that an acquaintance recorded its information. Under Insurance Law § 5221 (b) (2), covered-person status requires qualification under Insurance Law § 5202 (b) and compliance with applicable article 52 requirements. Applying the exhaustion requirement and citing Insurance Law § 5218, the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of MVAIC's cross motion dismissing the complaint.

Reported in New York Official Reports at Compas Med., P.C. v MVAIC (2017 NY Slip Op 51734(U))

[*1]

Compas Med., P.C. v MVAIC

2017 NY Slip Op 51734(U) [58 Misc 3d 129(A)]

Decided on December 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-60 Q C

Compas Medical, P.C., as Assignee of Deronette, Marie, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered June 18, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted a cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

“Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person’ and thereby have such rights as a covered person may have under [Insurance Law article 51],’ an injured person must be a qualified person,’ as that term is defined in Insurance Law § 5202 (b), and must have complied with all of the applicable requirements of Insurance Law article 52 (e.g. Insurance Law § 5208)” (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

In the instant case, MVAIC’s cross-moving papers show that plaintiff’s assignor testified at an examination under oath (EUO) that the “dollar van,” which had allegedly caused her injuries, had remained at the scene until the police had arrived and that someone she or her daughter knew had written down the information about the “dollar van” while it had remained at the scene. As a result, the identity of the driver and owner of the “dollar van” may, in fact, be ascertainable and plaintiff, as assignee, could then exhaust its remedies against all potential insurance carriers before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; see generally Insurance Law § 5218; Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

Legal questions

A question 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.

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 because the assignor testified the van stayed at the scene and its information was written down, the owner and driver may be identifiable and the provider must exhaust remedies against other carriers before claiming against MVAIC.

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

Howard M. Rombon, Ph.D, P.C. v MVAIC (2008 NY Slip Op 52128(U))The provider's entitlement to MVAIC benefits remained disputed because the assignor's qualified-person status presented a factual issue.

Cited by

A label shows how the later decision treated this one.

Right Aid Med. Supply Corp. v MVAIC (2020 NY Slip Op 50882(U)) FollowedThe provider's MVAIC claim was premature because it showed no effort to identify the striking vehicle's owner or operator from its license plate.

Similar decisions

Ap Orthopedic & Rehabilitation, P.C. v Mvaic (2011 NY Slip Op 51448(U))The assignor's failure to provide proof of New York residency defeated the provider's claim for no-fault benefits from MVAIC. The Appellate Term, Second Department, found that the assignor was neither a qualified person under Insurance Law § 5202 (b) nor a covered person under Insurance Law § 5221 (b) (2), leaving a condition precedent unsatisfied.
Five Boro Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 51709(U))A provider and assignor who know the vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider sought assigned benefits for an assignor who had been a passenger in the vehicle, and both knew the owner's identity.
Metropolitan Med. Supplies, LLC v MVAIC (2013 NY Slip Op 51583(U))A provider aware of the owner of the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC benefits.
T & S Med. Supply Corp. v MVAIC (2017 NY Slip Op 51755(U))MVAIC established nonreceipt of a notice-of-intention affidavit, and the record did not establish the assignor's qualified-person status.
Advanced Med. Diagnostics of Queens, P.C. v Mvaic (2015 NY Slip Op 51659(U))The provider failed at trial to show exhaustion of remedies against the known vehicle owner before seeking benefits from MVAIC. A prior order had limited the nonjury trial to whether MVAIC coverage existed.