Opinion
Index No. CV-726023-19/QU
11-01-2021
ADVANCED RECOVERY E. & S., As Assignee of Dressman, Plaintiff(s), v. MVAIC, Defendant(s).
Plaintiff's counsel: Lewin & Baglio PC, 1100 Shames Drive, Suite 100, Westbury, NY 11590 Defendant's counsel: Jaime Ellen Gangemi, 100 William Street, 14th Floor, New York, NY 10038
Plaintiff's counsel: Lewin & Baglio PC, 1100 Shames Drive, Suite 100, Westbury, NY 11590
Defendant's counsel: Jaime Ellen Gangemi, 100 William Street, 14th Floor, New York, NY 10038
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint and Plaintiff's cross-motion for summary judgment on its claim:
Papers Numbered
Defendant's Notice of Motion and Affirmation in Support dated February 4, 2020 ("Motion ") and file stamped by the court on February 27, 2020. 1
Plaintiff's Notice of Cross-Motion and Affirmation in Support dated August 26, 2020 ("Cross-Motion ") and electronically filed with the court on October 14, 2020. 2
Defendant's Affirmation in Opposition to Plaintiff's Cross-Motion dated September 14, 2020 ("Opposition to Cross-Motion ") and electronically filed with the court on the same date 3
II. Background
In a summons and complaint filed December 6, 2019, Plaintiff sued Defendant insurance company to recover $322.98 in unpaid first party No-Fault benefits for services provided to Plaintiff's assignor Dressman on December 11, 2017, plus attorneys’ fees and statutory interest (see Motion, Aff. of Staub, Ex. A). Defendant moved for summary judgment dismissing Plaintiff's complaint ( CPLR 3212[b] ) on the ground that Plaintiff assignor was not a qualified person under the motor vehicle accident indemnification corporation act ("Act "), because Plaintiff failed to show that Dressman timely reported the accident and filed notice of intent to file a claim ("Notice of Claim ") pursuant to Insurance Law 5201[a] ( Insurance Law 5208 ). Plaintiff cross-moved for summary judgment on its claim against Defendant.
III. Discussion
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions ..." ( CPLR 3212 [b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ; Anghel v Ruskin Moscou Faltischek, P.C. , 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
The Act is designed to provide No-Fault benefits for persons injured by uninsured motorists ( Insurance Law § 5201[b][1] and [3] ; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. , 81 AD3d 223, 227 [2d Dept 2011] ) or unidentified vehicle owners and operators ( Insurance Law § 5201[b][2] ; Matter of Hernandez v. Motor Veh. Acc. Indem. Corp. , 120 AD3d 1347, 1348 [2d Dept 2014] ). Defendant, the Motor Vehicle Accident Indemnification Corporation ("MVAIC "), has the "rights and obligations" applicable to insurers under the No-Fault statutes ( Insurance Law § 5221[b][3] ; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. , 12 AD3d 429, 429-30 [2d Dept 2004] ). Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim ( Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 501 [2015] ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d 556, 563 [2008] ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317 [2007] ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d 274, 278 [1997] ). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 281-86 ). The sole exception to preclusion for an insurer's failure to pay or deny a claim is lack of coverage ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Central Gen. Hosp. v Chubb Group of Ins. Cos. , 90 NY2d 195, 199 [1997] )
In the instant matter, Defendant sought dismissal of Plaintiff's claims on the ground that Dressman was not a qualified person entitled to receive benefits under the Act for failing to timely report the accident or provide a Notice of Claim. Here, Defendant bore the burden of demonstrating that Dressman was not a "qualified person" entitled to No-Fault benefits (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. , 81 AD3d at 229 ; see Insurance Law §§ 5202[b] ; 5208; 5221[b][2]). As relevant in this case, a "qualified person" is defined as "a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative" ( Insurance Law § 5202[b][i] ). The Act requires a qualified person to "[file] with [MVAIC] within one hundred eighty days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating:
(A) The person has a cause of action for damages arising out of the accident and setting forth the facts in support;
(B) The cause of action is against the owner or operator of an uninsured motor vehicle, and
(C) The person is making a claim for such damages.
( Insurance Law 5208[a][1] ). Where the qualified person's claim arises from a motor vehicle accident with "a person whose identity is unascertainable," the above affidavit must be filed within ninety (90) days of the cause of action's accrual (see Insurance Law 5208[a][2][A] ; Matter of Laszlone v Motor Veh. Acc. Indem. Corp. , 167 AD3d 894, 895 [2d Dept 2018] ; Matter of Hernandez v Motor Veh. Acc. Indem. Corp. , 120 AD3d 1347, 1348 [2d Dept 2014] ; Meridian Health Acupuncture, P.C. v MVAIC , 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] *1-2 [App Term 2d Dept 2009]). In addition, the qualified person must also report the accident "within twenty-four hours after the occurrence to a police, peace or judicial officer in the vicinity or to the commissioner" ( Insurance Law 5208[a][2][A] ; see Matter of Laszlone v Motor Veh. Acc. Indem. Corp. , 167 AD3d 894, 895 [2d Dept 2018] ; Matter of Hernandez v Motor Veh. Acc. Indem. Corp. , 120 AD3d 1347, 1348 [2d Dept 2014] ; Matter of Pagan v Motor Veh. Acc. Indem. Corp. , 82 AD3d 1102, 1102 [2d Dept 2011] ). However, "[t]he fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such report or that it was made as soon as reasonably possible" ( Insurance Law 5208[a][2][B] ; Matter of Laszlone v Motor Veh. Acc. Indem. Corp. , 167 AD3d at 895 ; Optimal Well-Being Chiropractic, P.C. v MVAIC , 41 Misc 3d 131[A], 2013 NY Slip Op 51751[U] *1 [App Term 2d Dept 2013]; First Help Acupuncture, P.C. v MVAIC , 36 Misc 3d 148[A], 2012 NY Slip Op 51643[U] *2 [App Term 2d Dept 2012]; Meridian Health Acupuncture, P.C. v MVAIC , 2009 NY Slip Op 50440[U] *2). A timely filing of the Notice of Claim set forth above is a condition precedent to applying for payment from Defendant ( Medical Diversified Servs., Inc. v MVAIC , 58 Misc 3d 139[A], 2017 NY Slip Op 51848[U] *1 [App Term 2d Dept 2017]; TAM Med. Supply Corp. v MVAIC , 58 Misc 3d 137[A], 2017 NY Slip Op 51831[U] *1 [App Term 2d Dept 2017]; Avicenna Med. Arts, P.L.L.C. v MVAIC , 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U] *1 [App Term 2d Dept 2016]; Central Radiology Servs., P.C. v MVAIC , 28 Misc 3d 137[A], 2010 NY Slip Op 51454 *1 [App Term 2d Dept 2010]).
To support its Motion, Defendant presented two (2) affidavits sworn February 25, 2020 (see Motion, Staub Aff. Ex. C). Pollins, Defendant's Qualification Examiner, attested that Defendant requested verification, including a Notice of Claim and proof that the accident was timely reported from both Dressman's attorney and Plaintiff. Sheppard, Defendant's Core Support Department Supervisor, attested that she ensured that all documents received are scanned into Defendant's computer system, properly labeled, designated to the correct claimant and assigned to the correct examiner. Both Pollins and Sheppard attested in detail to Defendant's regular mailing procedures for verification request letters. Pollins attested in detail to Defendant's standard procedures for processing claims it received. Pursuant to Pollins, Defendant mailed the verification request letters to Dressman's attorney on January 23, February 23, March 26, April 25, and May 16, 2018, and to Plaintiff on February 6 and March 14, 2018 (see Motion, Staub Aff. Ex. D). Pollins attested that a diligent search of Defendant's records revealed that no Notice of Claim and no proof of timely report of the accident or that it was not reasonably possible to report the accident were filed. Defendant's evidence demonstrated that Dressman failed to file the required Notice of Claim ( TAM Med. Supply Corp. v MVAIC , 58 Misc 3d 137[A], 2017 NY Slip Op 51831[U] *1 [App Term 2d Dept 2017]; TAM Med. Supply Corp. v MVAIC , 57 Misc 3d 146[A], 2017 NY Slip Op 51459[U] *1 [App Term 2d Dept 2017]; Central Radiology Servs., P.C. v MVAIC , 28 Misc 3d 137[A], 2010 NY Slip Op 51454 *2 [App Term 2d Dept 2010]) or proof that the accident was reported within twenty-four (24) hours of the accident ( Optimal Well-Being Chiropractic, P.C. v MVAIC , 2013 NY Slip Op 51751[U] *1-2; First Help Acupuncture, P.C. v MVAIC , 2102 NY Slip Op 51643[U] *2; Velen Med. Supply v MVAIC , 33 Misc 3d 135[A], 2011 NY Slip Op 52016[U] *1 [App Term 2d Dept 2011]). Therefore, Defendants had showed entitlement to dismissal of Plaintiff's complaint.
In opposition, Plaintiff contended that Defendant failed to support its Motion with admissible evidence. Here, the dates to which Pollins attested in his affidavit as to when the verification request letters were sent and the information requested in them were identical to the information contained in the copies of letters sent and attached thereto and presented in support of the Motion (see Motion, Staub Aff., Ex. C, ¶¶ 25-26; Ex. D). While Plaintiff also argued Defendant's proof failed to establish that the verification request letters were mailed, Pollins and Sheppard detailed Defendant's regular mailing procedures in their affidavits to ensure that the requests for a Notice of Claim were properly mailed ( Ortho-Med Surgical Supply, Inc. v MVAIC , 28 Misc 3d 139[A], 2010 NY Slip Op 51526[U] *1 [App Term 2d Dept 2010], see Advanced Psychological Care, P.C. v MVAIC , 46 Misc 3d 129[A], 2014 NY Slip Op 51809[U] *1 [App Term 2d Dept 2014]). Contrary to Plaintiff's contention that Defendant's computer records were inadmissible, Pollins and Sheppard attested that Defendant's computer system did not allow modification of scanned documents (see CPLR 4539[b] ; Brand Med. Supply, Inc. v Infinity Ins. Co. , 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] *2 [App Term 2d Dept 2016]). Plaintiff also maintained that Defendant's failure to pay or deny the claim within thirty (30) days precluded Defendant from arguing that Dressman was not a qualified person. Here, the defense of lack of coverage, however, is not subject to preclusion ( Apollo Chiropractic Care, P.C. v MVAIC , 50 Misc 3d 142[A], 2016 NY Slip Op 50212[U] *2 [App Term 2d Dept 2016]; Central Radiology Servs., P.C. v MVAIC , 46 Misc 3d 74, 76 [App Term 2d Dept 2014] ; RAZ Acupuncture, P.C. v MVAIC , 25 Misc 3d 138[A], 2009 NY Slip Op 52362[U] *1 [App Term 2d Dept 2009]), and may always be raised ( Meridian Health Acupuncture, P.C. v MVAIC , 2009 NY Slip Op 50440[U] *2; Howard M. Rombon, Ph.D., P.C. v MVAIC , 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] *1-2 [App Term 2d Dept 2008]). Lastly, Plaintiff mistakenly relied on New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d at 430 ), to argue that Defendant must pay or deny within thirty (30) days of receiving a claim. There, that case merely held that the time to pay or deny did not run from the date MVAIC had a "qualified" injured party. Critically, the conditions precedent to filing a claim with the MVAIC were not involved in that case. Here, Plaintiff presented no evidence in its opposing papers that demonstrated Dressman's compliance with the Notice of Claim and accident reporting requirements of Insurance Law 5208 ( First Help Acupuncture, P.C. v MVAIC , 2012 NY Slip Op 51643[U] *2; Velen Med. Supply v MVAIC , 2011 NY Slip Op 52016[U] *1; Central Radiology Servs. v MVAIC , 2010 NY Slip Op 51454[U] *2; Meridian Health Acupuncture, P.C. v MVAIC , 2009 NY Slip Op 50440[U] *2).
It is well established that once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party's showing ( De Lourdes Torres v Jones , 26 NY3d 742, 763 [2016] ; Hutchinson v Sheridan Hill House Corp. , 26 NY3d 66, 79 [2015] ). For the matter before this Court, Defendant has sufficiently established, prima facie , that Plaintiff assignor failed to file the required Notice of Claim and therefore was not a covered "qualified person"; however, Plaintiff has failed to defeat Plaintiff's prima facie case by demonstrating that Dressman had filed the Notice of Claim and reported the accident pursuant to Insurance Law 5208. Defendant's Motion seeking a summary judgment dismissing Plaintiff's complaint is granted.
Briefly regarding Plaintiff's Cross-Motion, while Plaintiff met its initial burden of demonstrating that it timely submitted its claims to Defendant, who failed to timely pay or deny them, Defendant's evidence of lack of coverage due to Dressman's failure to satisfy conditions precedent to coverage under the Act requires denial of Plaintiff's Cross-Motion (see TAM Med. Supply Corp. v MVAIC , 2017 NY Slip Op 51831[U] *1-2; TAM Med. Supply Corp. v MVAIC , 58 Misc 3d 132[A], 2017 NY Slip Op 51777[U] *1-2 [App Term 2d Dept 2017]; Central Radiology Servs., P.C. v MVAIC , 2010 NY Slip Op 51454[U] *2; RAZ Acupuncture, P.C. v MVAIC , 2009 NY Slip Op 52362[U] *2).
IV. Order
Accordingly, it is
ORDERED that Defendant's Motion for summary judgment is granted, and that Plaintiff's complaint is dismissed; and it is further
ORDERED that Plaintiff's Cross-Motion for summary judgment is denied; and it is further
ORDERED that the Part Clerk is directed to dispose the index number for all purposes.
This constitutes the Decision and Order of the court.