Opinion
No. 570042/12.
2012-08-29
DOVER ACUPUNCTURE, P.C. a/a/o Gloria Castillo, Plaintiff–Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORP., Defendant–Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 17, 2011, which denied its motion for summary judgment dismissing the complaint.
Present: LOWE, III, P.J., HUNTER, Jr., J.
PER CURIAM.
Order (Fernando Tapia, J.), entered March 17, 2011, affirmed, with $10 costs.
This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal. Defendant MVAIC failed to eliminate all triable issues with respect to whether plaintiff's assignor filed a timely notice of intention to file a claim, since defendant's own evidence was conflicting as to the date it received the notice ( see generally Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985];Center Candy, Inc. v. CJB Food Mart, Inc., 50 AD3d 723 [2008] ). Nor did defendant meet its threshold burden to establish that plaintiff's assignor was not a “qualified person” entitled to no-fault coverage ( see Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011];Matter of MVAIC v. Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010] ). On this record, and given that defendant's own proof includes a denial of claim form from the putative insurer-stating that the vehicle in which plaintiff's assignor was a passenger was not insured on the date of the underlying accident-defendant failed to meet its threshold burden to establish that there was a policy of insurance in effect at the time of the accident ( see Pomona Med. Diagnostic v. MVAIC, 30 Misc.3d 132[A], 2011 N.Y. Slip Op 50042[U][App Term, 1st Dept 2011] ).
We have considered and rejected defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.