W.W. Med., P.C. v MVAIC (2014 NY Slip Op 50093(U))

W.W. Med., P.C. v MVAIC

2014 NY Slip Op 50093(U) [42 Misc 3d 135(A)]

Decided on January 31, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

W.W. Medical, P.C., Utica Avenue Chiropractic, P.C., Excellent Care Physical Therapy, P.C., a/a/o Jas Wellington, Plaintiffs-Respondents, - -

against

MVAIC, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about August 16, 2012, after a nonjury trial, in favor of plaintiffs and awarding them damages in the principal sum of $923.77.

Judgment (Raul Cruz, J.), entered on or about August 16, 2012, affirmed, with $25 costs.

We sustain the judgment issued in plaintiffs' favor upon the trial of this first-party no-fault action. The court properly determined that defendant failed to meet its burden of establishing that plaintiffs' assignor was not a "qualified person" entitled to no-fault coverage (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). In challenging the assignor's status as a qualified person, defendant relied principally, if not exclusively, on several claimed omissions from the notice of intention to make claim (timely) filed by the assignor. However, defendant may not seek refuge from liability based on any such omissions, having failed to timely object to the adequacy of plaintiff's notice or seek additional information in connection with any omitted items by way of verification and, indeed, having previously written to the assignor to inform him that the notice was "received" and "completed in full." In this posture, defendant must be held to have waived any defenses relating to the sufficiency of the notice (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004], lv denied 4 NY3d 705 [2005] cf. Matter of Willingham v Huston, 36 AD3d 469 [2007]).

Defendant is precluded from resurrecting its argument that the underlying motor vehicle accident was not reported to the police within 24 hours of the occurrence, defendant having [*2]abandoned that claim when it failed to raise the issue on its prior appeal to this Court (see Adams Drug Co. v Knobel, 172 AD2d 470 [1991], lv denied 78 NY2d 857 [1991] First Capital Asset Mgt. v N.A. Partners, 300 AD2d 112, 116, [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 31, 2014