November 2, 2011

Socrates Med. Health, P.C. v MVAIC (2011 NY Slip Op 51961(U))

Headnote

A provider obtained summary judgment of $2,844.91 against MVAIC in an action for assigned first-party no-fault benefits in Civil Court, Bronx County. The Appellate Term, First Department, held that MVAIC failed to raise a triable issue on its lack-of-coverage defense because it submitted no competent proof that the assignor was not qualified to receive no-fault benefits. It also held that MVAIC had not shown that the provider was required to exhaust its remedies before suing. The judgment was affirmed and the appeal from the order was dismissed as subsumed in the appeal from the judgment.

Reported in New York Official Reports at Socrates Med. Health, P.C. v MVAIC (2011 NY Slip Op 51961(U))

[*1]
Socrates Med. Health, P.C. v MVAIC
2011 NY Slip Op 51961(U) [33 Misc 3d 132(A)]
Decided on November 2, 2011
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
571042/10.

Socrates Medical Health, P.C. a/a/o Betty Perez, Plaintiff-Respondent, – –

against

MVAIC, Defendant-Appellant.


Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered May 18, 2010, in favor of plaintiff in the principal sum of $2,844.91, and from an order (same court and Judge), dated April 5, 2010, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.


Per Curiam.

Judgment (Elizabeth A. Taylor, J.) entered May 18, 2010, affirmed, with $25 costs. Appeal from order (Elizabeth A. Taylor, J.), dated April 5, 2010, dismissed, without costs, as subsumed in the appeal from the judgment.

In opposition to plaintiff’s prima facie showing of entitlement to judgment as a matter of law on its complaint seeking recovery of assigned first-party no-fault benefits, defendant MVAIC failed to raise a triable issue with respect to its lack of coverage defense. Defendant failed to submit any competent proof establishing that plaintiff’s assignor was not qualified to receive no-fault benefits (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Nor did defendant show that plaintiff was required to “exhaust its remedies” prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [App Term, 1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 02, 2011