Opinion
2020-466 K C
01-28-2022
BNE CLINTON MEDICAL, P.C., as Assignee of Gregory Diaz, Respondent, v. MVAIC, Appellant.
Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor was not a "qualified" person.
Upon a review of the record, we find that the motion papers establish that plaintiff's assignor was not a "qualified" person entitled to benefits from MVAIC, as he resided in the same household as his stepfather who had an automobile insurance policy which provided that relatives who reside in the same household were also insureds under the insurance policy (see Insurance Law § 5202 [b] ; Smith v Pennsylvania Gen. Ins. Co. , 32 AD2d 854 [1969], affd 27 NY2d 830 [1970] ). To the extent plaintiff argued, and the Civil Court held, that plaintiff's assignor was not an insured because he was over 18 years of age, neither the insurance policy nor the mandatory personal injury protection endorsement ( 11 NYCRR 65-1.1 ) limits coverage based upon the age of relatives. In light of the foregoing, MVAIC's motion for summary judgment dismissing the complaint should have been granted (see Longevity Med. Supply, Inc. v MVAIC , 64 Misc 3d 143[A], 2019 NY Slip Op 51276[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Island Life Chiropractic Pain Care, PLLC v MVAIC , 62 Misc 3d 148[A], 2019 NY Slip Op 50226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; T & S Med. Supply Corp. v MVAIC , 58 Misc 3d 131[A], 2017 NY Slip Op 51755[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.