June 3, 2016

Yklik, Inc. v Mvaic (2016 NY Slip Op 50874(U))

https://www.beynensonlaw.com/case-law/yklik-inc-v-mvaic-2016-ny-slip-op-50874u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50874(U) · 51 Misc 3d 152(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: MVAIC Provider's prima facie case
Legal questions: Claimant's prima facie case at trial · MVAIC eligibility: qualified covered person (see the maps)

Cite as

Yklik, Inc. v Mvaic, 51 Misc 3d 152(A), 2016 NY Slip Op 50874(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 at trial to establish MVAIC coverage because it did not prove submission of a notice of intention to make a claim. Coverage was the sole issue reserved for the nonjury trial. MVAIC's employee, the only witness, testified that no notice had been received. Under Insurance Law § 5208 (a) (1) and (3), timely notice is a condition precedent to payment, and compliance is necessary for covered-person status under Insurance Law § 5221 (b) (2). The provider's failure to establish submission defeated its prima facie case. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.

Reported in New York Official Reports at Yklik, Inc. v Mvaic (2016 NY Slip Op 50874(U))

[*1]

Yklik, Inc. v MVAIC

2016 NY Slip Op 50874(U) [51 Misc 3d 152(A)]

Decided on June 3, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2675 K C

Yklik, Inc., as Assignee of ASMIRES TEJADA, Respondent,

against

MVAIC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 16, 2013. The judgment, entered pursuant to a decision of the same court dated October 19, 2012, after a nonjury trial, awarded plaintiff the principal sum of $829.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 19, 2012 is deemed a premature notice of appeal from the judgment entered October 16, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing the complaint.

At the outset of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, it was noted that, in a prior order, the Civil Court had denied the parties’ motions for summary judgment and found that the sole issue for trial was whether there was coverage by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) of plaintiff’s claims. The only witness at trial was an employee of MVAIC, who testified that plaintiff’s assignor was not a covered person because MVAIC had never received a notice of intention to make claim form. After MVAIC concluded its case, the Civil Court awarded judgment to plaintiff.

“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]’ (see Insurance Law § 5208 [a] [1], [3]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, (2d Dept,) 2d & 11th Jud Dists (2005)])” (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also 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]). As plaintiff did not establish that a notice of intention to make claim form had been submitted to MVAIC, plaintiff [*2]failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the complaint.

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

Decision Date: June 03, 2016

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 at trial that the provider failed to establish its prima facie case because it did not show a notice of intention to make claim form had been submitted to MVAIC.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

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 did not establish covered-person status because it failed to prove submission of a timely notice of intention to make a claim, a condition precedent to recovery from MVAIC.

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.

Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 51271(U))The provider could not recover from MVAIC because its assignor neither filed a timely notice of claim nor sought leave to file late.
A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2006 NY Slip Op 50139(U)) FollowedA claimant must comply with MVAIC's statutory notice requirements to qualify for no-fault benefits.
M.N.M. Med. Health Care, P.C. v MVAIC (2009 NY Slip Op 50041(U))MVAIC 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))MVAIC obtained dismissal of two assignors' claims for untimely notices, but failed to establish notice or limitations defenses for a third.

Similar decisions

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).
SK Prime Med. Supply, Inc. v MVAIC (2015 NY Slip Op 51663(U))The provider failed to prove the assignor's New York residency and submission of a notice of intention to claim benefits from MVAIC. At a nonjury trial, the provider's witness established only that a claim form had been created, mailed, and unpaid.
Peace of Mind, Social Work, P.C. v MVAIC (2011 NY Slip Op 51834(U))The provider failed to establish its prima facie case at trial because it offered no proof of submitting a notice of intention to claim to MVAIC. Its billing witness testified only to creation and mailing of the claim form and nonpayment.
Avicenna Med. Arts, P.L.L.C. v MVAIC (2016 NY Slip Op 51535(U))The provider failed at trial to establish submission of the notice-of-intention affidavit required for no-fault recovery from MVAIC. Its billing manager testified that the claims had been mailed, and the Civil Court awarded judgment after a nonjury trial.
Metro Health Prods., Inc. v MVAIC (2022 NY Slip Op 50588(U))The provider failed at trial to justify a late MVAIC notice of claim or show court permission to file it late.