Civil Court of the City of New York, Kings County, July 18, 2022

The Rybak Firm, PLLC, Brooklyn (Florence Zabokritsky of counsel), for plaintiff.

Law Offices of Jaime Gangemi, Brooklyn (Larry Rogak of counsel), for defendant.

In this action, plaintiff, Active Care Medical Supply, Corp., sued defendant, MVAIC (Motor Vehicle Accident Indemnification Corporation), to recover no-fault benefits for services provided to its assignor, Raymond Conde. Plaintiff's summary judgment motion was granted to the extent it made its prima facie case on the timely mailing and nonpayment of its bills. The purpose of trial was to determine (1) whether the assignor is a "qualified person"; (2) whether Insurance Law § 5208 is applicable, specifically pertaining to the timely filing of a police report; and (3) whether the statute of limitations expired. The defendant produced one witness, Ron Johnson, the qualification examiner. Plaintiff did not present any witnesses. The accident that gave rise to this action occurred on March 23, 2012. The summons and complaint were filed on October 27, 2016.

Pursuant to Insurance Law § 5221 (b) (2), for a person who is allegedly injured (the assignor or applicant) to be deemed a "covered person," the person must first be a "qualified person" as that term is defined under Insurance Law § 5202 (b) and must have complied with all the requirements contained in Insurance Law § 5208. (First Help Acupuncture, P.C. v MVAIC, 36 Misc 3d 148[A], 2012 NY Slip Op 51643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) The notification requirements of Insurance Law § 5208 require filing an accident report within 24 hours of the accident to the police or other enumerated entities, and filing a notice of intention to make a claim with MVAIC within 90 days unless it was "not reasonably possible to make such a report or . . . it was made as soon as was reasonably possible." (Insurance Law § 5208 [a] [2] [B].) Within the Second Department the burden is on the injured person or his or her assignee to establish compliance with Insurance Law § 5202 (b) as a qualified person and the applicable provisions of Insurance Law § 5208 to be deemed a covered person. It is then after such determination that Insurance{**76 Misc 3d at 1020} Law article 51 and the applicable regulation become relevant. As such, once the defendant establishes that the assignor has not submitted the requisite forms to qualify, the burden switches to the plaintiff medical provider to present evidence "that it had availed itself of the opportunity" to present the evidence. (Cf. Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].)

Here, the defendant's witness, Mr. Johnson, testified that his responsibilities are to review and request documents to determine if an injured person meets the requirement to be qualified for benefits with MVAIC. Mr. Johnson further testified that plaintiff submitted a notice of intention to make a claim, but not the police report. Mr. Johnson testified that defendant then requested written proof that the accident was reported to the police within 24 hours. According to Mr. Johnson, defendant has not received a response from plaintiff regarding the police report. Plaintiff did not present any evidence at trial that demonstrated its assignor complied with the reporting requirements of Insurance Law § 5208.

Plaintiff's reliance on Complete Med. Servs., P.C. v MVAIC (20 Misc 3d 85 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]) is unfounded. Plaintiff argues that the Appellate Term held that the insurer was not entitled to summary judgment because the provider's assignor failed to submit a copy of the police report. However, the Appellate Term held in Meridian Health Acupuncture, P.C. v MVAIC (22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) that the police report is a condition precedent to coverage. Therefore, in order to recover no-fault benefits from MVAIC, the plaintiff's assignor

"must have complied with all the applicable requirements of Insurance Law article 52, including . . . the filing of an accident report within [*2]24 hours of the occurrence (Insurance Law § 5202 [a] [2] [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.' " (Meridian Health Acupuncture, 2009 NY Slip Op 50440[U], *1-2, quoting Insurance Law § 5208 [a] [2] [B].)

Failure of claimant to verify "that the alleged accident ever occurred or that it was reported to the police within 24 hours" {**76 Misc 3d at 1021}disqualifies claimant from receiving MVAIC benefits. (Akita Med. Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 405, 408 [Nassau Dist Ct 2006].) There has been no showing the qualifying reporting requirements were met. Here, plaintiff neither presented evidence 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] [2] [B]; Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Thus, the plaintiff has not met its burden at trial to demonstrate the assignor is a qualified person. This court finds the assignor is not a covered person pursuant to Insurance Law § 5221 (b) (2).

For the foregoing reasons, this case is dismissed. The issue of the statute of limitations is moot as the plaintiff does not qualify for the benefits from MVAIC.