November 23, 2018

New Millennium Med. Imaging, P.C. v MVAIC (2018 NY Slip Op 51684(U))

https://www.beynensonlaw.com/case-law/new-millennium-med-imaging-p-c-v-mvaic-2018-ny-slip-op-51684u/

Court: Appellate Term, Second Department
Decided: November 23, 2018
Citation: 2018 NY Slip Op 51684(U) · 61 Misc 3d 145(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: MVAIC Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case at trial · MVAIC eligibility: qualified covered person (see the maps)

Cite as

New Millennium Med. Imaging, P.C. v MVAIC, 61 Misc 3d 145(A), 2018 NY Slip Op 51684(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.

The provider failed to establish its motorcycle-riding assignor's eligibility for MVAIC benefits because it did not prove a class C motorcycle. The assignor's sworn NF-2 stated that the assignor was driving a motorcycle when injured. Following Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., the Appellate Term, Second Department, explained that Insurance Law § 5103 (a) (1) and (2) generally excludes motorcycle riders. Insurance Law § 5102 (m), read with Vehicle and Traffic Law §§ 123, 121-b and 2265 (3), permits benefits for class C motorcycles, which have a maximum speed of 20 miles per hour and require no insurance, absent another statutory bar. Without that proof, the provider failed its prima facie case, and dismissal after the nonjury trial was affirmed.

Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v MVAIC (2018 NY Slip Op 51684(U))

[*1]

New Millennium Med. Imaging, P.C. v MVAIC

2018 NY Slip Op 51684(U) [61 Misc 3d 145(A)]

Decided on November 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 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
2016-861 K C

New Millennium Medical Imaging, P.C., as Assignee of Yao He Wang, Appellant,

against

MVAIC, Respondent.

Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Law Office of Jaime E. Gangemi (Tracy Bader Pollack of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2015. The judgment, after a nonjury trial, dismissed the complaint.

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

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC), the Civil Court dismissed the complaint.

The sworn NF-2 submitted by plaintiff’s assignor stated that plaintiff’s assignor had been injured when the motorcycle he had been driving had been involved in an accident with another vehicle. In Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (81 AD3d 223, 228-229 [2011]), the Appellate Division stated:

“Generally, motorcycle riders, whether operators or passengers, are not entitled to first-party no-fault insurance benefits from MVAIC (see Insurance Law § 5103 [a] [1], [2]; see also Quinones v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 1007[A], 2004 NY Slip Op 51729[U] [2004]; 2-27 New Appleman New York Insurance Law § 27.04 [3] [2d ed] [‘Occupants of a motorcycle are excluded from coverage and are never entitled to no-fault benefits’]). A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial [*2]security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added]). The Vehicle and Traffic Law defines a motorcycle as a ‘motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor’ (Vehicle and Traffic Law § 123). Pursuant to the Vehicle and Traffic Law, class C motorcycles, which have a maximum speed of 20 miles per hour, are not required to carry insurance (see Vehicle and Traffic Law §§ 121-b, 2265 [3]). Construing these provisions together, the operator of, or passenger on a class C motorcycle is entitled to no-fault benefits in the absence of any other statutory preclusion of benefits (see Tyler v Traveler’s Ins. Co., 110 Misc 2d 471, 473 [1981] [operators of and passengers on ‘class C mopeds, minibikes and go-carts are entitled to first-party benefits under no-fault’]; 2-27 New Appleman New York Insurance Law § 27.04 [3] [‘Occupants of . . . limited-use class C motorcycles will not be excluded from coverage’]). Thus, not all motorcycles are required to carry insurance.”

As plaintiff failed to establish that the motorcycle was a class C motorcycle, and thus that plaintiff’s assignor was eligible for first-party no-fault benefits, plaintiff failed to establish its prima facie case (see Troches v MVAIC, 171 AD2d 873 [1991]; Quinones v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 1007[A], 2004 NY Slip Op 51729[U] [Sup Ct, Kings County 2004]; see also Medical Diversified Servs., Inc. v MVAIC, 58 Misc 3d 139[A], 2017 NY Slip Op 51848[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 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 its prima facie case because it did not establish that the motorcycle its assignor drove was a class C motorcycle not required to carry insurance.

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 the provider failed to show its motorcycle-operator assignor was eligible for MVAIC benefits because it did not prove the motorcycle was a class C vehicle exempt from the insurance requirement.

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.

Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (2011 NY Slip Op 00176) FollowedMVAIC failed to establish that the assignor's uninsured mini-bike disqualified the assignor from receiving no-fault benefits.
Medical Diversified Servs., Inc. v MVAIC (2017 NY Slip Op 51848(U))The provider failed to establish its prima facie case at trial because it did not prove submission of a notice-of-intention affidavit to MVAIC. Its witness testified that the claims had been mailed, but timely filing of the affidavit was a condition precedent to payment under Insurance Law § 5208 (a) (1) and (3).

Similar decisions

Greater Health Through Chiropractic, P.C. v MVAIC (2008 NY Slip Op 52178(U))MVAIC failed to establish that the vehicle the assignor was using or operating when injured was a motorcycle.
Village Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51421(U))The provider failed at trial to establish the assignor's eligibility for MVAIC benefits through residency proof and a notice-of-intention affidavit.
Advanced Chiropractic of NY, P.C. v MVAIC (2017 NY Slip Op 50955(U))The provider failed to prove the assignor's New York residency and the absence of other available insurance coverage for its MVAIC claim.
Lida’s Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51167(U))The provider failed to show that its bicyclist assignor met the accident-reporting requirement for MVAIC benefits or qualified for an excuse.
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.