October 27, 2011
Velen Med. Supply v MVAIC (2011 NY Slip Op 52016(U))
https://www.beynensonlaw.com/case-law/velen-med-supply-v-mvaic-2011-ny-slip-op-52016u/
- Court
- Appellate Term, Second Department
- Decided
- October 27, 2011
- Citation
- 2011 NY Slip Op 52016(U) · 33 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 4 later decisions (see Cited by)
- Legal questions
- MVAIC eligibility: qualified covered person (see the maps)
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.
Reported in New York Official Reports at Velen Med. Supply v MVAIC (2011 NY Slip Op 52016(U))
[*1]| Velen Med. Supply v MVAIC |
| 2011 NY Slip Op 52016(U) [33 Misc 3d 135(A)] |
| Decided on October 27, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1961 K C.
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid
Joseph, J.), entered March 29, 2010. The order granted defendant’s motion for summary
judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
“Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person’ and thereby have such rights as a covered person may have under [Insurance Law article 51],’ an injured person must be a qualified person,’ as that term is defined in Insurance Law § 5202 (b), and must have complied with all of the applicable requirements of Insurance Law article 52 (e.g. Insurance Law § 5208)” (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, in order for someone who was injured in a hit-and-run accident, such as plaintiff’s assignor herein, to be a “covered person” and obtain no-fault benefits, the person must have complied with all the applicable requirements of Insurance Law article 52, including, but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance Law § 5202 [a] [2] [A]) unless a showing is made that it was “not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible” (Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]).
In the instant case, MVAIC’s claims examiner stated in his affidavit that despite repeated requests for proof that plaintiff’s assignor had filed an accident report as required by Insurance Law § 5202 (a) (2) (A), plaintiff’s assignor had never provided such proof. Plaintiff’s opposing papers are devoid of any indication that plaintiff’s assignor complied with the reporting requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it “was not reasonably possible to make such a report” (Insurance Law § 5208 [a] [2] [B]). [*2]Accordingly, the order is affirmed (see Insurance Law § 5221 [b] [2]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011
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.
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 hit-and-run assignor not shown to be a covered person because the provider gave no indication the accident was reported within 24 hours, nor any showing that reporting was not reasonably possible.
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.
- Howard M. Rombon, Ph.D, P.C. v MVAIC (2008 NY Slip Op 52128(U)) FollowedThe provider's entitlement to MVAIC benefits remained disputed because the assignor's qualified-person status presented a factual issue.
- Meridian Health Acupuncture, P.C. v MVAIC (2009 NY Slip Op 50440(U)) FollowedThe provider failed to show compliance with the 24-hour hit-and-run reporting requirement or an excuse, defeating coverage through MVAIC. The assignor was a pedestrian injured in a hit-and-run accident.
Cited by
A label shows how the later decision treated this one.
- First Help Acupuncture, P.C. v MVAIC (2012 NY Slip Op 51643(U)) FollowedThe provider failed to show that its hit-and-run assignor met the 24-hour accident-report requirement or qualified for an exception.
- Optimal Well-Being Chiropractic, P.C v MVAIC (2013 NY Slip Op 51751(U)) FollowedThe 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.
- Advanced Recovery E. & S. v MVAIC (2021 NY Slip Op 51035(U)) FollowedMVAIC established that the assignor failed to satisfy the notice-of-claim and accident-reporting conditions for coverage.
- Lida’s Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51167(U)) FollowedThe provider failed to show that its bicyclist assignor met the accident-reporting requirement for MVAIC benefits or qualified for an excuse.
Similar decisions
- Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC (2017 NY Slip Op 51763(U))MVAIC established that both the notice of claim and the hit-and-run police report were untimely.
- Compas Med., P.C. v MVAIC (2017 NY Slip Op 51734(U))The provider's claim against MVAIC was dismissed because the van's driver and owner might be ascertainable.
- Ap Orthopedic & Rehabilitation, P.C. v Mvaic (2011 NY Slip Op 51448(U))The assignor's failure to provide proof of New York residency defeated the provider's claim for no-fault benefits from MVAIC. The Appellate Term, Second Department, found that the assignor was neither a qualified person under Insurance Law § 5202 (b) nor a covered person under Insurance Law § 5221 (b) (2), leaving a condition precedent unsatisfied.
- 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.
- Complete Med. Servs., P.C. v MVAIC (2008 NY Slip Op 28269)MVAIC's 30-day period to deny a claim or request verification runs from receipt of the claim, regardless of a qualification determination.