December 17, 2014

Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51817(U))

https://www.beynensonlaw.com/case-law/optimal-well-being-chiropractic-p-c-v-mvaic-2014-ny-slip-op-51817u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51817(U) · 46 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: MVAIC Timeliness and preclusion
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Optimal Well-Being Chiropractic, P.C. v MVAIC, 46 Misc 3d 130(A), 2014 NY Slip Op 51817(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 assignor was not a covered person because no timely notice of claim was filed with MVAIC and no leave to file a late notice was sought. MVAIC established those omissions under Insurance Law § 5208 (a) and (c). The condition precedent to the provider's right to apply for no-fault benefits was therefore unsatisfied because the assignor did not qualify under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion dismissing the complaint. It reached no other issue.

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51817(U))

[*1]

Optimal Well-Being Chiropractic, P.C. v MVAIC

2014 NY Slip Op 51817(U) [46 Misc 3d 130(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1481 Q C

Optimal Well-being Chiropractic, P.C. as Assignee of JOSE USHINA, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 18, 2012, deemed from a judgment of the same court entered June 6, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 18, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,330.50.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 18, 2012 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court, entered May 18, 2012, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Since defendant established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered May 18, 2012 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014

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: Court finds a qualification or article 52 condition affirmatively NOT met; claim fails on that ground

Held the assignor was not a covered person because MVAIC established no timely notice of claim was filed and no leave to file late was sought, so a condition precedent was unmet and 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, 67 (this one included) are in the same category.

Cited in this decision

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

M.N.M. Med. Health Care, P.C. v MVAIC (2009 NY Slip Op 50041(U)) FollowedMVAIC established that the assignor failed to file a timely notice of claim, defeating coverage for the provider's assigned claim.
Bell Air Med. Supply, LLC v MVAIC (2007 NY Slip Op 51607(U)) FollowedMVAIC obtained dismissal of two assignors' claims for untimely notices, but failed to establish notice or limitations defenses for a third.
Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 51271(U)) FollowedThe provider could not recover from MVAIC because its assignor neither filed a timely notice of claim nor sought leave to file late.

Similar decisions

Optimal Well-Being Chiropractic, P.C v MVAIC (2013 NY Slip Op 51751(U))The provider failed to show that its assignor reported the alleged hit-and-run within 24 hours or had an excuse for failing to report it.
Brooklyn Hgts. Physical Therapy, P.C v MVAIC (2012 NY Slip Op 51774(U))MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought.
Shore Med. Diagnostic, P.C. v MVAIC (2013 NY Slip Op 51749(U))MVAIC established that no timely notice of claim was filed and no leave to file a late notice was sought.
3 Star Acupuncture, P.C. v MVAIC (2012 NY Slip Op 50756(U))MVAIC established that the assignor had not timely filed a notice of claim or sought leave to file a late notice.
East Gun Hill Med., P.C. v MVAIC (2015 NY Slip Op 50398(U))MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought.