Opinion
2009-1750 Q C
09-16-2011
Turnpike Medical, P.C. as Assignee of PABLO RUIZ, Respondent, v. MVAIC, Appellant.
PRESENT: : , J.P., GOLIA and RIOS, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 8, 2009, deemed from a judgment of the same court entered July 23, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 8, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $3,233.77.
ORDERED that the judgment is affirmed, without costs.
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 which granted plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
On appeal, defendant contends that plaintiff was not entitled to summary judgment because plaintiff's assignor was not a qualified person since he failed to provide defendant with written proof of lack of insurance. This argument lacks merit because plaintiff's assignor's status as a qualified person is not dependent upon defendant's receipt of these documents (see Insurance Law § 5202 [b]; Liberty Orthopedics, PLLC v MVAIC, 20 Misc 3d 136[A], 2008 NY Slip Op 51533[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff established its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]), and as defendant's remaining contentions are raised for the first time on appeal and are not properly before this court (see Terranova v Waheed Brokerage, Inc., 78 AD3d 1040 [2010]; Pierre v Lieber, 37 AD3d 572, 573 [2007]; Gouldborne v Approved Ambulance & Oxygen Serv., 2 AD3d 113, 114 [2003]; Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]; Gordon v Hong, 126 AD2d 514 [1987]), the judgment is affirmed.
Weston, J.P., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only in the following memorandum:
I am constrained to agree with the majority with regard to the issue of what constitutes a plaintiff's prima facie case in a no-fault action brought against the Motor Vehicle Accident Indemnification Corporation (MVAIC) in view of the Appellate Division's ruling in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]; see also Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010] ["the burden is on MVAIC to prove its lack-of-coverage defense"]).
I nevertheless disagree with the characterization of plaintiff as a "qualified" injured party.
Although defendant MVAIC does assert that it is entitled to receive proof of a "lack of insurance," its opposition to the underlying motion in the Civil Court was predicated upon plaintiff's failure to establish its prima facie case. In order to establish its case, plaintiff must, in my opinion, first establish, as a condition precedent, that it was entitled to collect no-fault benefits from MVAIC. That is, that there is no "private" insurance available. That was not done here.
The Insurance Law, coupled with the Insurance Department No-Fault Regulations, creates a somewhat complex statutory and definitional scheme. Nevertheless, its purpose was to achieve a logical and fair result. That purpose, in cases involving MVAIC, is to provide that an individual who is injured in an automobile accident and who did not violate the mandatory-insurance law will receive no-fault benefits. Providing, that is, that there is no "private" insurance company responsible for covering the loss. This is the last line of protection for individuals who are injured by someone who has violated the financial responsibility requirements of the Insurance Law. The Law also covers those injured in a "hit and run" accident. In the normal course of events, benefits are paid by a "private" insurance carrier which bears responsibility to the "covered" individual. However, if, and only if, there is no responsible "private" insurance carrier, then the "injured" individual is eligible to receive no-fault benefits from MVAIC.
MVAIC was created for the sole purpose of providing insurance coverage where there otherwise would be none. Consequently, unlike any other "private" carrier, if a claimant is seeking payment from MVAIC, that claimant must establish that it is eligible to receive payments from MVAIC in the first instance. Again, the claimant must establish prima facie, as a condition precedent, that there is no "private" insurance carrier responsible for his injuries. This fact is an immutable truth. MVAIC should not be required to raise the issue, as would be the case where the defendant is a "private" carrier. Therefore, this plaintiff should be required to plead and then prove the unavailability of any "private" insurance according to the Insurance Law. That is the requirement of any condition precedent and that requirement is supported by well- settled authority (see Katz v City of New York, 87 NY2d 241 [1995]).
In the case at bar, plaintiff did not even attempt to prove this condition precedent despite the fact that plaintiff, in its original complaint, did plead, "That at the time of the accident there was no existing insurance policy containing benefits as defined by 11 NYCRR 65.15 (K) (IV) under the New York State No Fault Law." Plaintiff here knew what was legally required of it and did plead this fact, but failed to prove it.
Accordingly, were it not for the constraint of the appellate authority to the contrary, I would hold that plaintiff failed to establish its prima facie case and would deny its motion.