Opinion
CV-717777-19/QU
04-15-2021
SABAS, as Assignee of Mora, Plaintiff(s), v. MVAIC, Defendant(s).
Plaintiff's Counsel: Gabriel & Moroff, P. C., 2 Lincoln Avenue, Suite 302, Rockville Centre, New York 11570. Defendant's Counsel: Law Office of Jamie E. Gangemi, 100 William Street, 14th Floor, New York, New York 10038.
Plaintiff's Counsel: Gabriel & Moroff, P. C., 2 Lincoln Avenue, Suite 302, Rockville Centre, New York 11570.
Defendant's Counsel: Law Office of Jamie E. Gangemi, 100 William Street, 14th Floor, New York, New York 10038.
Wendy Changyong Li, J.
The following papers were read on Defendant's motion for summary judgment seeking an order dismissing Plaintiff's complaint:
PapersNumbered
Defendant's Notice of Motion seeking summary judgment and Affirmation1 in Support dated December 27, 2019 ("Motion ") and file stamped by the court on January 8, 2020.
Plaintiff's Affirmation in Opposition ("Opposition ") dated and electronically2 filed with the court on November 20, 2020.
Defendant's Reply Affirmation dated November 24, 2020 ("Reply ") and3 electronically filed with the court on November 30, 2020.
Background
In a summons and complaint filed on August 15, 2019, Plaintiff sued Defendant to recover $1,449.21 in unpaid first party No-Fault benefits for health services provided to Plaintiff's assignor Mora on November 5, 2018, plus attorneys' fees and statutory interest. Mora was injured in a motor vehicle accident October 29, 2018. Defendant moved for summary judgment dismissing the complaint ( CPLR 3212[b] ), on the ground that Mora was not qualified to receive benefits.
Discussion and Decision
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions ..." ( CPLR 3212 [b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ; Anghel v Ruskin Moscou Faltischek, P.C. , 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
The motor vehicle accident indemnification corporation act ("Act ") is designed to provide No-Fault benefits for persons injured by uninsured motorists ( Insurance Law § 5201[b][1] and [3] ; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. , 81 AD3d 223, 227 [2d Dept 2011] ) or unidentified vehicle owners and operators ( Insurance Law § 5201[b][2] ; Matter of Hernandez v. Motor Veh. Acc. Indem. Corp. , 120 AD3d 1347, 1348 [2d Dept 2014] ). The Motor Vehicle Accident Indemnification Corporation has the "rights and obligations" applicable to insurers under the No-Fault statutes ( Insurance Law § 5221[b][3] ; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. , 12 AD3d 429, 429-30 [2d Dept 2004] ). Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim ( Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 501 [2015] ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d 556, 563 [2008] ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317 [2007] ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d 274, 278 [1997] ). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 281-86 ).
In the instant matter, Defendant sought dismissal of Plaintiff's claims on the ground that Mora was not a qualified person entitled to receive benefits under the Act because he failed to provide an affidavit of no insurance from the vehicle's owner or evidence that the vehicle was uninsured. Here, Defendant bore the burden of demonstrating that Mora was not a "qualified person" entitled to No-Fault benefits (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. , 81 AD3d at 229 ; see Insurance Law §§ 5202[b] ; 5208; 5221[b][2]). As relevant in this case, a "qualified person" is defined as "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" ( Insurance Law § 5202[b][i] ).
To support its motion, Defendant presented an affidavit sworn January 7, 2020, in which Johnson, its Qualification Examiner, attested that Defendant requested from Plaintiff and Mora proof that the owner of the vehicle in which Mora was injured was uninsured. Defendant contended that Mora was not a qualified person because Defendant received no response to its requests. Contrary to Defendant's contention, this Court finds that Mora's status as a qualified person does not depend on Defendant's receipt of written proof of lack of insurance ( Delta Diagnostic Radiology, P.C. v MVAIC , 44 Misc 3d 138[A], 2014 NY Slip Op 51261[U] *1 [App Term 2d Dept 2014]; Intuitive Chiropractic, P.C. v MVAIC , 34 Misc 3d 144[A], 2012 NY Slip Op 50147[U] *1 [App Term 2d Dept 2012], see Central Radiology Servs., P.C. v MVAIC , 36 Misc 3d 146[A], 2012 NY Slip Op 51624[U] * 1 [App Term 2d Dept 2012]). Although the notices Defendant began mailing to Mora's counsel in December 2018 also requested Mora's proof of residency and a sworn Notice of Intention to Make a Claim (see Motion, Aff. of Staub Ex. D), Defendant's motion papers included a copy of a Notice of Intention to Make Claim (see Motion, Staub Aff. Ex. E) sworn November 27, 2018, in which Mora listed his address in New York City ( Delta Diagnostic Radiology, P.C. v MVAIC , 2014 NY Slip Op 51261[U] *1; Compas Medical, P.C. v MVAIC , 43 Misc 3d 126[A], 2014 NY Slip Op 50465[U] *1 [App Term 2d Dept 2014]; Allstate Social Work & Psych. Servs. v MVAIC , 36 Misc 3d 141[A], 2012 NY Slip Op 51498[U] *1 [App Term 2d Dept 2012]). In the notice, Mora also indicated that he was injured as a passenger in a vehicle and that he did not know the owner of the vehicle or if the owner was insured. While Johnson attested that Mora's attorney hired an investigator to obtain information on the alleged uninsured motorist, such account was hearsay ( Antelope v Saint Aidan's Church, Inc. , 110 AD3d 1020, 1022 [2d Dept 2013] ). While Defendant also relied on Department of Motor Vehicles abstracts to show that the vehicle in which Mora was a passenger was insured, Defendant merely presented a copy of the abstract without laying a business record foundation or other basis for the abstract's admissibility ( CPLR 4518[a] ; see People v Smith , 118 AD3d 920, 921 [2d Dept 2014] ; People v Maldonado , 44 AD3d 793, 794 [2d Dept 2007] ). Here, Defendant has failed to present prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law ( CPLR 3212 [b] ; Jacobsen v New York City Health and Hosps. Corp. , 22 NY3d 824 [2014] ; Brill v City of New York , 2 NY3d 648 [2004] ).
Order
Accordingly, it is
ORDERED that Defendant's motion for summary judgment seeking an order dismissing Plaintiff's complaint is denied.
This constitutes the Decision and Order of this Court.