[*1]
New Millennium Med. Imaging, P.C. v M.V.A.I.C.
2015 NY Slip Op 50233(U) [46 Misc 3d 1222(A)]
Decided on January 28, 2015
Civil Court Of The City Of New York, Kings County
Levine, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 28, 2015
Civil Court of the City of New York, Kings County


New Millennium Medical Imaging, P.C. A/A/O YAO HE WANG, Plaintiff,

against

M.V.A.I.C., , Defendant.




09564/09



Attorneys for Plaintiff:
Law Offices of Damin J. Toell, P.C.
532 Neptune Avenue, #245112
Brooklyn, New York 11224

Attorneys for Defendant:
Andrew J. Staub, Esq.
Cruz & Gangi and Associates
100 William Street, 14th Floor
New York, New York 10038


Katherine A. Levine, J.

Plaintiff New Millennium Medical Imaging, P.C. ("plaintiff" or "NMMI"), a radiology center, commenced this action to recover the sum of $2,659.81 and $912.00 for imaging services it provided to its assignor Yao He Wang ("assignor", "applicant" or "Wang"). Defendant Motor Vehicle Accident Indemnification Corporation ("defendant" or "MVAIC") requests that the Court dismiss the claim based upon the assignor's ineligibility for MVAIC benefits under Article 52 of the New York Insurance Law.

The parties stipulated at trial that plaintiff had made its prima facie case by timely mailing its bills and assignment of benefit form to MVAIC and that defendant had timely mailed its request to qualify letters to both the provider and the assignor's attorney. They also stipulated that Wang had filed the "Notice of Intention to Make Claim" form with MVAIC wherein he indicated that the make and year of both Vehicles No.'s 1 and 2 were unknown, and that the registration was unknown even though Wang put down that he was the driver of Vehicle # 1 (Court's "4"). Wang also indicated on this form that he had reported this incident to the 103rd police precinct. Finally, Wang stated that vehicle #2 struck Vehicle #1 and that he did not own a motor vehicle. Over plaintiff's objection, the Court admitted into evidence the NF-2 (an application for no-fault benefits) where Wang checked off that he was operating either "a bus or school bus or a motorcycle."

The four requests to qualify sent by MVAIC informed Wang that to be deemed a "covered person" under Insurance Law Article 52, Wang had to be a "qualified person" and that [*2]he had not yet met the requirements of a qualified person since there were an number of items that MVAIC had not yet received. Among the outstanding items that MVAIC requested from the applicant's attorney were a notarized household affidavit, proof of residency, written confirmation of insurance, written proof showing lack of insurance, an affidavit of no insurance from the vehicle owner, and proof that the accident was timely reported to the police. MVAIC mailed almost identical letters to the provider NMMI. All the letters ended by stating that "this request for information is necessary to qualify for MVAIC coverage." While the assignor's attorney never responded, NMMI wrote MVAIC that it was not in possession of the information requested and that MVAIC should contact the patient directly or through his attorney.

Defendant admittedly did not issue a timely denial. The following issues were raised at trial: (1) whether the defendant proved its defense that at the time of the accident, the applicant was occupying the type of motorcycle which was statutorily excluded from no fault benefits; (2) whether the applicant's failure to submit proof that the accident was reported within 24 hours to the police department disqualifies him from coverage; and 3) whether defendant had to issue a timely denial in order to prove its defense that the applicant was not a qualified person because at the time of the accident he was driving the motorcycle.

MVAIC was created to "provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle" NY Insurance Law ("Ins. Law") § 5201. The intent was to afford injured parties the same protections that exist when a tortfeasor involved in a motor vehicle accident been covered by insurance.Englington Med., P.C. v. MVAIC,, 81 AD3d 223, 227-28 (2d Dept. 2011). See, Morisi v MVAIC, Corp., 19 AD2d 727( 2d Dept. 1963). The statutory provisions creating and regulating MVAIC should be liberally construed to serve those ends. Englington, supra, 81 AD3d at at 228. See, Mtr of Dixon v MVAIC, 56 AD2d 650, 651 (2nd Dept. 1977).

In order for someone who has allegedly been injured (the assignor or applicant) to be a "covered person" person under Ins. Law § 5221(b)(2), and hence be eligible for no fault benefits, the person must be a "qualified person" as that term is defined under § 5202(b), and must have complied with all of the requirements contained in § 5208. First Help Acupuncture, P.C. v. MVAIC, 2012 NY Slip Op 51643(U), 36 Misc 3d 148(a) (App. Term, 2d Dept. 2012). See, Olmecs Medical Supplies, Inc. v. MVAIC, 2013 NY Slip Op 50218(U), 38 Misc 3d 140(A) (App. Term, 2d Dept. 2013).

The plaintiff need only show, by proper evidentiary proof, that the prescribed statutory billing forms were properly generated, mailed and received, and that no fault benefits were over due. NY Hosp. Med. Ctr. v. MVAIC, 12 AD3d 429 (2nd Dept. 2004) citing Mary Immaculate Hosp. v Allstate Ins. Co. 5 AD3d 742, 742-43 (2d Dept.2004). Plaintiff does not have to prove that the assignor was a "qualified person" as part of its prima facie case. Rather, MVAIC must establish its prima facie defense that plaintiff's assignor was not a "qualified person" or lacked MVAIC no-fault coverage. Englington Med.,supra, 81 AD3d at 229; Pomona Medical Diagnostic, P.C. v. MVAIC, 2011 NY Slip Op 51573[U] 32 Misc 3d 140[A] (1st Dept. 2011); ] Bath Medical Supply Inc., v. MVAIC, 2010 NY Slip Op 31281[U], 2010 NY Misc. LEXIS 2327 [*3][Sup. Ct., Nassau Co. 2010]. See, Lexington Acupuncture v. MVAIC, 2012 NY Slip Op 51960U, 37 Misc 3d 1210(A) (Civil Ct., Kings Co. 2012).

However, regardless of whether plaintiff makes out its prima facie case pursuant to Ins. Law article 51, the plaintiff (and its assignor) must first comply with article 52. Akita Medical Acupuncture, P.C, v. MVAIC, 14 Misc 3d 405406 (Dist. Ct., Nass Co. 2006). Therefore, MVAIC need only pay first-party no-fault benefits to a qualified person for basic economic loss arising out of the use or operation in this state of an uninsured motor vehicle. See, Ins. Law § 5221(b)(2); Mtr of MVAIC v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 (1996). The term "qualified person" means "a resident of this state other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative." Ins. Law § 5202(b)(1). Therefore, a person is not qualified if (1) he is an insured person, since that person would have available insurance upon which he could make a claim for first party no fault benefits, or (2) is an owner of an uninsured motor vehicle, since Article 52 of the Insurance Law "is not intended to provide relief to those who fail to obtain insurance." Englington Med., P.C. supra, 81 AD3d at 228.

An uninsured vehicle, pursuant to Ins. Law § 5202(b), is a vehicle which is not an "insured motor vehicle," i.e., one which there is maintained proof of financial security. Ins. Law § 5202(c). See Englington, supra at 228. "Generally, motorcycle riders, whether operators or passengers, are not entitled to first-party no-fault insurance benefits from MVAIC." Englington, supra, 81 AD3d at 228. See Ins. Law § 5103(a)(2). A motorcycle typically is "required to carry financial security pursuant to article six, eight or 48A of the VTL." Id. See, Ins. Law §5102(m). However, not all motorcycles are required to have insurance. Pursuant to VTL §§1210b and 2265(3), class C motorcycles, which have a maximum speed of 20 mph are not required to carry insurance. Quinones v. MVAIC, 2004 NY Slip Op 51729U, 6 Misc 3d 1007(A) (Sup Ct. Kings. Co. 2004). "Construing these provisions together, the operator of, or passenger on a class C motorcycle is entitled to no-fault benefits in the absence of any other statutory preclusion of benefits." Englington, 81 AD2d at 125.

In order to be qualified, the applicant must also comply with the notification requirements of Ins. Law §5208, such as submitting a timely sworn notice of intention to make a claim to MVAIC (Olmecs, supra), and filing an accident report within 24 hours of the occurrence unless it was "not reasonably possible to make such a report or that it was made as soon as was reasonably possible." Howard M. Rombon v. MVAIC, 2008 NY Slip Op 52128(U), 21 Misc 3d 131 (A) (App. Ter, 2d & 11th Jud. Dists. 2008). See, Canty v. MVAIC 95 A..D. 2d 509, 511 (2d Dept. 1983). See also, Akita Med. Acupuncture, P.C. v. MVAIC, 14 Misc 3d 405, 408 (Nassau Cty. Dist. Ct. 2006) (Failure of claimant to verify that the alleged accident ever occurred or that it was reported to the police within 24 hours disqualifies claimant from receiving MVAIC benefits").

Where any of these requirements have not been met, the plaintiff's assignor is not a qualified person and thus, not a covered person. See, AP Orthopedic & Rehabilitation P.C. v. MVAIC, 2011 NY Slip Op 51448(U), 32 Misc 3d 133(A) (App. Term, 2d Dept 2011) (assignor's failure to provide MVAIC with proof that she was a resident of the State of New York when the [*4]accident occurred); See, RAZ Acupuncture, P.C. v MVAIC, 2009 NY Slip Op 52362(U), 25 Misc 3d 138(A) (App Term, 2d, Dists 2009); Five Boro Psychological Servs., P.C. v MVAIC, 2010 NY Slip Op 50647(U), 27 Misc 3d 131(A) (App Term, 2d, 11th & 13th Jud Dists. 2010); (Insurance Law § 5221 (b)(2); Howard M. Rombon, Ph.D., P.C. v MVAIC, supra. Consequently, a condition precedent to the right to apply for payment of no-fault benefits from MVAIC has not been satisfied and a defendant insurer is entitled to summary judgment. See, Five Boro Psychological Servs., P.C. v MVAIC, supra, Akita Medical, supra. See, generally, Canon Chiropractic, P.C.v. MVAIC, 2013 NY Slip Op 52044(U), 41 Misc 3d 1237A (Civil Ct., Kings Co. 2013) .

MVAIC has proven that plaintiff's assignor is not a qualified person and hence, not a covered person, because the assignor never responded to its four requests to qualify and, in particular, to its request that the applicant submit proof that the accident was timely reported to the police, which would typically be a police report. The assignor's failure to provide such proof is of greater magnitude in the instant matter since the assignor made inconsistent statements on the various forms he did file as to whether he was driving a vehicle (notice of intention form) or a motorcycle (NF-2), much less what type of motorcycle he was driving, although he did admit that vehicle 2 hit his vehicle 1 which he was driving and that he did not own a motor vehicle. This case is therefore distinguishable from Englingon, supra, where the issue of the applicant's non-compliance with MVAIC's requests to qualify was never raised, and the record indicated that MVAIC had in its possession a copy of the police accident report.

In light of the assignor's failure to clarify these inconsistencies by providing the material requested by MVAIC it is absurd for plaintiff to allege that the burden was on defendant to prove that the assignor was an occupant of a motorcycle at the time of loss or that he was driving the type of motorcycle which precludes an injured party from obtaining benefits from MVAIC. Ins. Law §5103 (a)(1)( i.e. a non-class C motorcycle).

Here, MVAIC has met its burden of establishing that the assignor has not submitted the requisite forms to qualify him as a qualified person and thus entitle him to coverage by MVAIC. The burden then switches to the plaintiff medical provider to present evidence "that it had availed itself of the opportunity" to present the evidence. Cf Jamaica Medical Supply v. NY City Transit Authority, 2012 NY Slip Op 51660(U), 36 Misc 3d 150(A) (App. Term, 2d Dept. 2012). Here, plaintiff offered no such evidence and merely wrote a letter advising MVAIC to seek the information from the applicant or his attorney, which MVAIC had already done when it alerted plaintiff of the missing documents.

MVAIC's instant lack of coverage defense is not subject to the 30 day preclusion rule and may be raised at any time. MVAIC v. Interboro Medical Care & Diagnostic P.C., 73 AD3d 667 (2d Dept. 2010); Family Care Acupuncture P.C. 2010 NY Slip Op 51414(U), 28 Misc 3d 1220(A) (Civil Ct., NY Co. 2010). See, Kipor Medicine P.C. v. MVAIC, 23 Misc 3d 948 (Civil Ct., Kings Co. 2009).

For the foregoing reasons, the case is dismissed. This constitutes the Decision and Order of the Court.

Dated: January 28, 2015

Katherine A. Levine
Acting Justice, Supreme Court