Opinion
No. 13328/09.
2012-10-9
LEXINGTON ACUPUNCTURE, PC a/a/o Kathleen Gillespie, Plaintiff, v. MVAIC, Defendants.
Gary Tsirelman, P.C., Brooklyn, attorneys for plaintiff. Cruz & Gangi, New York, attorneys for defendant.
Gary Tsirelman, P.C., Brooklyn, attorneys for plaintiff. Cruz & Gangi, New York, attorneys for defendant.
KATHERINE A. LEVINE, J.
All the issues raised by defendant in its brief were reiterated by the Second Department in NY Hospital Medical Center of Queens v. MVAIC, 12 A.D.3d 429, 784 N.Y.S.2d 593 (2d Dept.2004)motion for leave to appeal den.4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 (2004). This case makes it clear that neither plaintiff's burden to make out its prima facie case nor the time lines governing a defendant's denial are altered because MVAIC is the defendant.
Plaintiff never submitted a brief despite this Court's direction.
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., supra, 12 A.D.3d at 429, 784 N.Y.S.2d 593.See, Mary Immaculate Hosp. v. Allstate Ins. Co. 5 A.D.3d 742–43, 774 N.Y.S.2d 564 (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., P.C. v. MVAIC, 81 A.D.3d 223, 229, 916 N.Y.S.2d 122 (2d Dept.2011); Pomona Medical Diagnostic, P.C. v. MVAIC, 2011 N.Y. Slip Op 51573(U), 32 Misc.3d 140(A) (1st Dept.2011); Bath Medical Supply Inc., v. MVAIC, 2010 N.Y. Slip Op 31281(U), 2010 N.Y. Misc. LEXIS 2327, 2010 WL 2158249 (Sup.Ct., Nassau Co.2010).
Defendant next contends that any letters that it sent in an effort to determine/confirm whether the assignor was a qualified person (“qualification letters”) should not be held to the same time requirements contained in 11 NYCRR § 65.3.5–3.6 for verification letters since Article 52 of the Insurance Law makes the qualification of an applicant for MVAIC a condition precedent to coverage and hence constitutes a non precludable defense. In NY Hospital, supra, the Second Department specifically rejected MVAIC's contention that the 30–day time limit in which to deny a claim, contained in 11 NYCRR 65.15, does not apply until after MVAIC has qualified an injured party. 12 AD3d at 430. The First Department subsequently noted that although the 30 day rule did not apply to the “narrow exception” based upon lack of coverage, Mtr of MVAIC v. Interboro Medical Care, 73 A.D.3d 667, 902 N.Y.S.2d 45(1st Dept.2010), the situation in NY Hospital, supra—whether the applicant was a “qualified person”—did not fall within that exception. See, Exclusive Medical Supply Inc. v. Yango, 2012 N.Y. Slip Op 50616(U), 35 Misc.3d 1209(A) (Civil Ct., Kings Co 2012). As such, any requests by MVAIC to determine the status of the assignor have to be made within the governing time frames for verification letters.
In light of the above ruling, the parties are directed to confer and determine the status of this case, and report back to the Court within three weeks of this decision.
This constitutes the decision and order of the court.