The Rogak Report: 02 May 2007 ** MVAIC - "Qualified Person" **
FAILURE TO FILE TIMELY FILE NOTICE OF INTENTION TO MAKE CLAIM AGAINST MVAIC LEADS TO DISMISSAL OF NO-FAULT CLAIM
Akita Med. Acupuncture, P.C. a/a/o Ana Rodriguez v. Motor Veh. Acc. Indem. Corp. 2007 NY Slip Op 50898(U) Decided on May 1, 2007 District Court Of Nassau County, First District Engel, J. Index no. 1754/2006 Edited by Lawrence N. Rogak
The Plaintiff medical provider commenced this action for no-fault benefits in the sum of $1,080.00. MVAIC moved for summary judgment, alleging that the Plaintiff failed to file a Notice of Intention to make a claim within one hundred eighty (180) days, pursuant to Insurance Law § 5208(a)(1), resulting in a lack of coverage.
"Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. V. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court's function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985); Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Company, 35 AD3d 720, 827 NYS2d 217 (2nd Dept. 2006) It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The evidence presented must be viewed in a light most favorable to the party opposing the motion. Corvino v. Mount Pleasant Central School District, 305 AD2d 364, 757 NYS2d 896 (2nd Dept. 2003); Tassone v. Johannemann, 232 AD2d 627, 648 NYS2d 708 (2nd Dept.,1996)."
"In support of its application, the Defendant submits the affidavit of David Shnayderman, one of its Claims Examiners to whom the Plaintiff's assignor's file was assigned for handling. Mr. Shnayderman alleges that a review of this file discloses that a Notice of Intention was never filed by the Plaintiff's assignor with the Defendant. Mr. Shnayderman further alleges that, in addition to the absence of a Notice of Intention from the file, a search of the Defendant's computer records, into which the receipt of a Notice of Intention would be logged, reveals there is no computer entry of receipt of the requisite notice."
"In opposition, the Plaintiff submits the affirmation of counsel who does not deny that a Notice of Intention was not served upon the Defendant. Counsel instead alleges that the claims for medical services upon which this action is based were submitted to the Defendant on August 13, 2003 and such claims were neither denied nor paid. Counsel further argues that on October 23, 2003, with more than two (2) months left before the expiration of the time within which to file a Notice of Intention, the Defendant sent a letter to the Plaintiff's assignor informing her that she did not qualify for coverage with MVAIC. Although the Defendant acknowledges sending such a letter, neither party submits same. Moreover, Plaintiff does not indicate what action, if any, the Plaintiff or its assignor took upon receipt of this alleged letter or that, with more than two (2) months to go, any effort was made to file the Notice of Intention. Counsel for the Plaintiff merely speculates that this letter 'quite possibly caused the assignor to abandon its claim on the premise that MVAIC stated she failed to qualify.'"
"It is the opinion of this court that the Defendant has made an appropriate showing of entitlement to judgment, as a matter of law. Conversely, the Plaintiff's opposition is inadequate to defeat the Defendant's motion, being based on nothing more than Plaintiff's counsel's affirmation, which is not based upon his personal knowledge, CPLR § 3212(b); Fiore v. MTC Construction Corp., 112 AD2d 265, 491 NYS2d 713 (2nd Dept. 1985), and is without substantive merit."
"As here relevant, the purpose of Insurance Law Article 52, known as the Motor Vehicle Accident Indemnification Act, is set forth in Insurance Law § 5201(b) as follows:"
"The legislature finds and declares that the motor vehicle financial security act in the vehicle and traffic law, ... fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by:
"(2) unidentified motor vehicles which leave the scene of the accident."
"In addition, this article is intended 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, as provided herein and in the comprehensive motor vehicle insurance reparations act. The legislature determines that it is a matter of grave concern that those persons are not recompensed for their injury and financial loss inflicted upon them and that the public interest can best be served by closing such gaps in the motor vehicle financial security act and the comprehensive motor vehicle insurance reparations act through the continued operation of the motor vehicle accident indemnification corporation. " Canty v. Motor Vehicle Accident Indemnification Corporation, 95 AD2d 509, 467 NYS2d 50 (2nd Dept. 1983); A.B. Medical Services PLLC v. Motor Vehicle Accident Indemnification Corp., 10 Misc 3d 145(A), 814 NYS2d 889 (App. Term 2nd and 11th Jud. Dists. 2006); Ocean Diagnostic Imaging v. Motor Vehicle Accident Indemnification Corp., 8 Misc 3d 137(A), 803 NYS2d 19 (App. Term 2nd and 11th Jud. Dists. 2005)
"A 'qualified person' entitled to coverage under Article 52 is defined by Insurance Law § 5202(b) as nothing more or less than:"
"(i) 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, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative. It does not include any operator of or passenger on a snowmobile. In this subsection, "operator" means every person who operates or is in actual physical control of a snowmobile, whether or not it is under way." Canty v. Motor Vehicle Accident Indemnification Corporation, supra .; McNair v. Motor Vehicle Accident Indemnification Corporation, 11 NY2d 701, 225 NYS2d 767 (1962); Saunderson v. The Motor Vehicle Accident Indemnification Corporation, 54 AD2d 936, 388 NYS2d 318 (2nd Dept. 1976).
"This threshold determination that an individual is a qualified person' does not, however, end the inquiry. Canty v. Motor Vehicle Accident Indemnification Corporation, supra . Before MVAIC becomes obligated to pay no-fault first party benefits to a 'qualified person,' pursuant to the Comprehensive Motor Vehicle Reparations Act, Insurance Law Article 51, that individual must also become a 'covered person' by complying with the requirements of Insurance Law Article 52. A.B. Medical Services PLLC v. Motor Vehicle Accident Indemnification Corp., supra .; Ocean Diagnostic Imaging v. Motor Vehicle Accident Indemnification Corp., supra .; Insurance Law § 5221(b)(2) A qualified person who has complied with all the applicable requirements of this article shall be deemed to be a covered person and shall have only such rights as a covered person may have under article fifty-one of this chapter."
"Insurance Law § 5208 specifically provides, in pertinent part:"
"The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to:"
"(1) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state, who files with the corporation within one hundred eighty days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:"
"(A) the person has a cause of action for damages arising out of the accident and setting forth the facts in support, (B) the cause of action is against the owner or operator of a designated uninsured motor vehicle, and (C) the person is making a claim for such damages. See: Hempstead General Hospital v. MVAIC, 97 AD2d 544, 468 NYS2d 48 (2nd Dept. 1983) wherein the failure to file a Notice of Intention pursuant to Insurance Law § 5208 resulted in the dismissal of the Petitioner's claim even though the Respondent's denial, based thereon, was not made in excess of two (2) years."
"Additionally, Insurance Law § 5221 provides, in pertinent part:"
"(b)(1) Notwithstanding the provisions of this article, the corporation [MVAIC] shall also provide for the payment of first party benefits to a qualified person for basic economic loss arising out of the use or operation in this state of an uninsured motor vehicle."
"(3) The corporation shall have only those rights and obligation which are applicable to an insurer subject to article fifty-one of this chapter."
"As with any other insurer, pursuant to Insurance Law, Article 51, the Defendant's 'lack of coverage' defense is not waived by Defendant's failure to issue a denial to the bills submitted by the Plaintiff, which form the basis of its claim herein. Central General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 (1997); Hospital for Joint Diseases v. Allstate Insurance Company, 21 AD2d 348, 800 NYS2d 190 (2nd Dept. 2005)"
"The Defendant has satisfactorily established that the Plaintiff's assignor failed to file a Notice of Intention. The Plaintiff, on the other hand, has failed to offer any proof that this condition precedent to coverage was met, or that Plaintiff's assignor reasonably relied upon the Defendant's alleged letter of October 23, 2003, allowing for the application of the doctrine of equitable estoppel to forgive the Plaintiff's assignor's failure to timely file a Notice of Intention. Putter v. North Shore University Hospital, 7 NY3d 548, 825 NYS2d 435 (2006); Zumpano v. Quinn, 2 NY3d 666, 816 NYS2d 703 (2006); Pahlad ex rel. Berger v. Brustman, __ NY3d __, __ NYS2d __, (2007); 2007 NY Slip Op. 02592."
"Accordingly, the Defendant's motion for summary judgment is granted; and, it is hereby ORDERED, that the Plaintiff's complaint is dismissed."