October 31, 2008

Greater Health Through Chiropractic, P.C. v MVAIC (2008 NY Slip Op 52178(U))

Headnote

MVAIC failed to establish that the vehicle the assignor was using or operating when injured was a motorcycle. It sought summary judgment on the ground that the assignor was ineligible for no-fault benefits, asserting that the injuries occurred while using or operating an owned motorcycle. Although motorcycle use or operation would make the assignor ineligible under Insurance Law § 5103 (a) and 11 NYCRR 65-1.1 (e), MVAIC's proof did not establish that the vehicle was a motorcycle under Vehicle and Traffic Law § 123. The Appellate Term, Second Department, affirmed denial of MVAIC's motion on that ground rather than the lower court's late-denial rationale.

Reported in New York Official Reports at Greater Health Through Chiropractic, P.C. v MVAIC (2008 NY Slip Op 52178(U))

[*1]
Greater Health Through Chiropractic, P.C. v MVAIC
2008 NY Slip Op 52178(U) [21 Misc 3d 133(A)]
Decided on October 31, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1709 K C.

Greater Health Through Chiropractic, P.C., a/a/o VICTORIA CRUZ, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered September 11, 2007. The order denied defendant’s motion for summary judgment.


Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC)
moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiff’s assignor was not eligible to recover first-party no-fault benefits since she could not be a “qualified person” as defined in Insurance Law § 5202 (b) due to the fact that she was allegedly injured while using or operating a motorcycle which she owned. The court denied MVAIC’s motion on the ground that MVAIC failed to deny plaintiff’s claims within the 30-day claim determination period. This appeal by MVAIC ensued.

Although plaintiff’s assignor would be ineligible to receive first-party no-fault benefits if her injuries were sustained as a result of her use or operation of a motorcycle (see Insurance Law § 5103 [a]; see also Insurance Department Regulations [11 NYCRR] § 65-1.1 [e]), MVAIC failed to submit sufficient evidence establishing that the vehicle she was using or operating at the [*2]time of the accident was a motorcycle (see Vehicle and Traffic Law § 123). As a result, MVAIC’s motion for summary judgment was properly denied, albeit on other grounds (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 2008

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