Opinion
No. 50732/09.
2010-08-6
FAMILY CARE ACUPUNCTURE, P.C. a/a/o Ali Shalina, Plaintiff, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORP., Defendant.
Leon Kucherovsky, Esq., New York, for plaintiff. Cruz & Gangi and Associates, New York, for defendant.
Leon Kucherovsky, Esq., New York, for plaintiff. Cruz & Gangi and Associates, New York, for defendant.
ARLENE P. BLUTH, J.
Defendant MVAIC's motion for summary judgment dismissing the complaint is granted.
Defendant is a not-for-profit corporation, created by statute, which provides benefits to victims of “hit-and-run” and uninsured motorist accidents. This action seeks no-fault benefits and arises out of an alleged motor vehicle accident on February 4, 2009 involving plaintiff's assignor, Ali Shalina.
Plaintiff claims that it provided acupuncture services to Mr. Shalina beginning February 9, 2009, five days after the alleged accident, and again on February 10, 11, 16 and 24, 2009. Plaintiff, as assignee, wants MVAIC to pay its bill in the amount of $776.88. It is not contested that plaintiff sent its bill to defendant.
Defendant moves for summary judgment dismissing the complaint on the grounds that Mr. Shalina never became a “qualified person” as provided by Insurance Law § 5221(b). In support, defendant submits the affidavit of its Qualifications Examiner, Joella Lewis, who swears that she made a diligent search of the file and electronic records maintained by defendant, but did not find a notice of intent to make a claim from Mr. Shalina, a police report of the subject accident or his affidavit establishing that he did not have insurance coverage within his household. In other words, Ms. Lewis swears that MVAIC had no information about Mr. Shalina other than from the plaintiff. In opposition, plaintiff's counsel asserts that defendant has not established either that it timely denied plaintiff's claims or that it timely and properly issued verification requests.
In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015, 414 N.E.2d 395 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 at 562, 427 N.Y.S.2d 595 (1980).
In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues (Dauman Displays, Inc. v. Masturzo, 168 A.D.2d 204, 562 N.Y.S.2d 89 [1st Dept 1990] ). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v. West 95th Street Development Corp., 161 A.D.2d 218, 554 N.Y.S.2d 604 [1st Dept 1990] ), or where the issue is even arguable or debatable (Stone v. Goodson, 8 N.Y.2d 8, 200 N.Y.S.2d 627 [1960] ).
As MVAIC has submitted an affidavit swearing that plaintiff's assignor did not file a notice of intention to make a claim, police report or household affidavit, defendant's moving papers make a prima facie showing that plaintiff's assignor is not a “qualified person” (Insurance Law § 5202[b] ) and, thus, that he is not a “covered person” (Insurance Law § 5221[b][2] ).
Plaintiff's first argument in opposition is that defendant may not raise this “issue” to “obviate the 30–day requirement which would frustrate the purpose and objective of the No–Fault Law” (aff. in opp., para. 4). Plaintiff is incorrect.
A qualified person (Insurance Law § 5202[b] ) who has complied with requirements of law becomes a “covered person” (Insurance Law § 5221[b][2] ). Here, it was not even determined whether Mr. Shalina was “qualified”—for example, inter alia, it was not even determined that he was a victim of a motor vehicle accident, that no vehicle involved in that accident had private insurance, or even that met residency requirements.
In Hospital for Joint Diseases v. Travelers Property Cas. Ins. Co., 9 NY3d 312, 849 N.Y.S.2d 473 (2007), the Court of Appeals recognized “a narrow exception to this preclusion remedy for situations where an insurance company raises a defense of lack of coverage (citation omitted). In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed' (citation omitted)”. The Appellate Division, First Department recently held that, like insurers raising lack of coverage, MVAIC may raise the issue of lack of qualification at any time, and this issue is not subject to the thirty-day preclusion rule. MVAIC v. Interboro Medical Care & Diagnostic PC, 73 AD23d 667, 902 N.Y.S.2d 45 (1st Dept 2010). Plaintiff's second argument in opposition is that defendant improperly sent verification requests to plaintiff and its attorneys, rather than to plaintiff's assignor Mr. Shalina. This argument ignores the documents submitted on the motion. Plaintiff's NF–3 lists only “N/A, N/A, N.Y. 11235” as Mr. Shalina's address. As defendant claims there was no record of Mr. Shalina in its files, it would have been impossible for defendant to send anything to Mr. Shalina without having been given his address by plaintiff.
In this case, plaintiff apparently rendered services to “Mr. Shalina” (assuming that was his real name) on five separate occasions without ever obtaining any identification or proof of address. Perhaps because plaintiff had no other place to send the bill, it sent the bill to MVAIC. Because plaintiff's assignor, Mr. Shalina, never qualified for benefits from MVAIC, his assignee, plaintiff, who stands in his shoes, is not entitled to benefits from defendant either.
Accordingly, defendant's motion for summary judgment is granted and the action is hereby dismissed.
This is the Decision and Order of the Court.