Opinion
12-17-2014
CENTRAL RADIOLOGY SERVICES, P.C. as Assignee of Lenus Joseph, Respondent, v. MVAIC, Appellant.
Marshall & Marshall, PLLC, Jericho (Arthur T. Kontaxis of counsel), for appellant.
Marshall & Marshall, PLLC, Jericho (Arthur T. Kontaxis of counsel), for appellant.
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
Opinion
Appeal from a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), rendered July 14, 2008 and from a judgment of the same court entered November 28, 2011. The judgment, after a trial on stipulated facts and upon the decision rendered June 14, 2008, awarded plaintiff the principal sum of $1,758.40. ORDERED that the appeal from the decision is dismissed, as no appeal lies therefrom (see CCA 1702 ); and it is further,
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.
After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Marc Habif, D.C./Complete Care Chiropractic v. Kemper Auto & Home Ins., 28 Misc.3d 55, 906 N.Y.S.2d 677 [App.Term, 2d, 11th & 13th Jud.Dists.2010] ). The Civil Court awarded judgment in favor of plaintiff, finding that, since the parties had stipulated that plaintiff had timely submitted its claims and that defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) had not timely denied the claims or properly sought verification as to whether plaintiff's assignor was a resident of New York State, MVAIC was precluded from interposing its defense that plaintiff had failed to establish compliance with a condition precedent to coverage (see e.g. AP Orthopedic & Rehabilitation, P.C. v. MVAIC, 32 Misc.3d 133[A], 2011 N.Y. Slip Op. 51448[U], 2011 WL 3370582 [App.Term, 2d, 11th & 13th Jud.Dists.2011] ).
“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 N.Y. Slip Op. 52128[U], *1, 2008 WL 4712439 [App.Term, 2d & 11th Jud.Dists.2008] ). Insofar as is relevant to this appeal, Insurance Law § 5202(b) provides that a “qualified person” must be a resident of New York State. While the parties stipulated that MVAIC had received a notice of intention to make claim form with respect to plaintiff's assignor, the stipulation is silent as to whether the notice of intention to make claim form was sworn and whether it reflected the residence of plaintiff's assignor. Thus, it is unknown whether the notice of intention to make claim form was sufficient to establish, in the first instance, that this condition precedent was satisfied (see e.g. Allstate Social Work & Psychological Svcs., P.L.L.C. v. MVAIC, 36 Misc.3d 141[A], 2012 N.Y. Slip Op. 51498[U], 2012 WL 3239826 [App.Term, 2d, 11th & 13th Jud.Dists.2012] ; Complete Med. Servs. of N.Y., P.C. v. MVAIC, 33 Misc.3d 127[A], 2011 N.Y. Slip Op. 51835[U], 2011 WL 4949672 [App.Term, 2d, 11th & 13th Jud.Dists.2011] ). Moreover, we note that an insurer's claim that there is a lack of coverage is not subject to preclusion (Howard M. Rombon, Ph.D, P.C. v. MVAIC, 21 Misc.3d 131[A], 2008 N.Y. Slip Op. 52128[U] ). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue (see Marc Habif, D.C./Complete Care Chiropractic, 28 Misc.3d 55, 906 N.Y.S.2d 677 ).