|Meridian Health Acupuncture, P.C. v MVAIC|
|2009 NY Slip Op 50440(U) [22 Misc 3d 141(A)]|
|Decided on March 12, 2009|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A.
Lebedeff, J.), entered February 7, 2007. The order denied defendant's motion for summary
judgment dismissing the complaint.
Order reversed without costs and defendant's motion for summary judgment dismissing the complaint 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) moved for summary judgment dismissing the complaint on the ground that there was no coverage due to, inter alia, the failure of plaintiff's assignor to comply with a condition precedent to the right to apply for payment from MVAIC. In opposition, plaintiff argued, insofar as is relevant, that because plaintiff was not seeking summary judgment, plaintiff did not have to prove that its assignor complied with the requirement that an accident report be filed within 24 hours of the hit-and-run accident. The court denied MVAIC's motion. This appeal by MVAIC ensued.
"Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person' and thereby have 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] [App Term, 2d & 11th Jud Dists 2008]). Thus, in order for a pedestrian who was injured in a hit-and-run accident, such as plaintiff's assignor herein, to be a "covered person" and obtain no-fault benefits, the pedestrian must have complied with all the applicable requirements of Insurance Law article 52, including, but not limited to, the filing of an accident report within [*2]24 hours of the occurrence (Insurance Law § 5202 [a]  [A]) unless a showing is made that it was "not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible" (Insurance Law § 5208 [a]  [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 ). The moving and opposing papers are bereft of any indication that plaintiff's assignor complied with the reporting requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it "was not reasonably possible to make such a report or that it was made as soon as was reasonably possible" (Insurance Law § 5208 [a]  [B]). Consequently, as a result of the failure to comply with a condition precedent to the right to apply for payment from MVAIC, plaintiff's assignor is not a "covered person," within the meaning of the statute, entitled to recover no-fault benefits from MVAIC (see Insurance Law § 5221 [b] ; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). We note that MVAIC's failure to establish that it timely denied plaintiff's claims is of no consequence since an assertion that there is a lack of coverage may always be raised (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 ; Zappone v Home Ins. Co., 55 NY2d 131 ; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 ) is not to the contrary. Accordingly, MVAIC's motion for summary judgment should have been granted (see Canty, 95 AD2d 509; Howard M. Rombon, Ph.D., P.C., 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U]; Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]).
Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.