Opinion
2013-107 S C
02-23-2016
Apollo Chiropractic Care, P.C. as Assignee of ROCKY LUTHER, Respondent, v. MVAIC, Appellant.
PRESENT: :
Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered September 18, 2012. The judgment, upon an agreed statement of facts, awarded plaintiff the principal sum of $324.33.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.
After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Central Radiology Servs., P.C. v MVAIC, 46 Misc 3d 74 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Marc Habif, D.C./Complete Care Chiropractic v Kemper Auto & Home Ins., 28 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). The parties stipulated that plaintiff had timely submitted its claim forms to recover assigned no-fault benefits to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) and that MVAIC had attempted to send verification requests to plaintiff, but had mailed them to an address other than plaintiff's address. The District Court awarded judgment in favor of plaintiff, finding that, since MVAIC had sent its verification requests to the wrong address, MVAIC was precluded from interposing its defense that plaintiff did not establish compliance with a condition precedent to coverage, i.e., the failure to submit a sworn notice of intention to make claim form to MVAIC (see e.g. Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).
"Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person' and thereby have [only] 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], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The filing of a timely affidavit providing MVAIC with notice of intention to make a claim is a condition precedent to the right to apply for payment from MVAIC (see Insurance Law § 5208 [a]). Unless plaintiff's assignor complied with the requirements of Insurance Law article 52, including, but not limited to, Insurance Law § 5208, plaintiff's assignor is not deemed to be a "covered person" and, as a result, does not have the rights afforded to a "covered person" under Insurance Law article 51 (Insurance Law § 5221 [b] [2]; Olmecs Med. Supplies, Inc. v MVAIC, 38 Misc 3d 140[A], 2013 NY Slip Op 50218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).
Contrary to the District Court's conclusion, MVAIC's proffered defense of lack of coverage is not subject to preclusion (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997] [a denial based upon a policy exclusion from coverage differs from a denial based upon a lack of coverage, in that a lack of coverage defense is not subject to preclusion since there was never any coverage in effect]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]). As the parties' stipulated facts do not establish whether plaintiff's assignor is a "covered person" entitled to rights under Insurance Law article 51, it is unknown whether this condition precedent was satisfied (see Olmecs Med. Supplies, Inc., 38 Misc 3d 140[A], 2013 NY Slip Op 50218[U]; Howard M. Rombon, Ph.D, P.C., 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U]). We note that "[a] court is without discretion to allow late filing [of a notice of intention to make claim form] for any reasons other than those set forth in the statute" (Matter of Ramos v Motor Vehicle Acc. Ind. Corp., 54 AD2d 734, 734 [1976]), and that MVAIC may not be estopped from raising the failure to file a notice of intention to make claim form as MVAIC does not have a duty to notify the claimant that the notice of intention to make claim form had not been timely submitted (see Zeigler v Motor Veh. Acc. Indem. Corp., 53 AD2d 590 [1976]).
Accordingly, the judgment is reversed and the matter is remitted to the District Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue (see Central Radiology Servs., P.C., 46 Misc 3d 74; Marc Habif, D.C./Complete Care Chiropractic, 28 Misc 3d 55).
Marano, P.J., Garguilo and Connolly, JJ., concur. Decision Date: February 23, 2016