February 22, 2019

Starlite Acupuncture, P.C. v MVAIC (2019 NY Slip Op 50225(U))

https://www.beynensonlaw.com/case-law/starlite-acupuncture-p-c-v-mvaic-2019-ny-slip-op-50225u/

Court: Appellate Term, Second Department
Decided: February 22, 2019
Citation: 2019 NY Slip Op 50225(U) · 62 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: MVAIC Timeliness and preclusion
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Starlite Acupuncture, P.C. v MVAIC, 62 Misc 3d 148(A), 2019 NY Slip Op 50225(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

MVAIC established that the assignor failed to timely file a notice to make claim, defeating the provider's right to seek benefits. The Appellate Term, Second Department, reversed the order denying MVAIC's motion for summary judgment and granted dismissal of the provider's assigned no-fault claims. Without timely filing under Insurance Law § 5208 (a), the assignor was not a covered person under Insurance Law § 5221 (b) (2), and a condition precedent to seeking payment remained unsatisfied. The provider failed to establish that leave to file a late notice had been obtained under Insurance Law § 5208 (c) or otherwise raise a triable issue. The court reached no other issue.

Reported in New York Official Reports at Starlite Acupuncture, P.C. v MVAIC (2019 NY Slip Op 50225(U))

[*1]

Starlite Acupuncture, P.C. v MVAIC

2019 NY Slip Op 50225(U) [62 Misc 3d 148(A)]

Decided on February 22, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2957 K C

Starlite Acupuncture, P.C., as Assignee of Pinckney, Donovan, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 11, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s 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 which denied defendant’s motion for summary judgment dismissing the complaint.

Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), 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 (see M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 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 Dept, 2d & 11th Jud Dists 2007]). In opposition to MVAIC’s motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law § 5208 [c]). In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 22, 2019

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

Granted MVAIC summary judgment because it established that no timely notice of intention to make a claim was filed and the provider showed no leave to file late, so the assignor was not a covered person.

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.

Similar decisions

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.
GL Acupuncture, P.C. v MVAIC (2017 NY Slip Op 51866(U))MVAIC established that no timely notice of claim had been filed, leaving a condition precedent to no-fault payment unsatisfied.
Forest Park Acupuncture, P.C. v MVAIC (2018 NY Slip Op 50768(U))MVAIC established that no timely notice to make claim was filed, leaving the assignor outside covered-person status.
JCC Med., P.C. v MVAIC (2019 NY Slip Op 50676(U))MVAIC established that the notice to make claim was untimely, leaving the assignor outside covered-person status.
New Millennium Med. Imaging, P.C. v MVAIC (2017 NY Slip Op 51833(U))MVAIC established that no timely notice of claim had been filed, and the provider did not show leave for late filing.