Englington Med., P.C. v. Motor Vehicle Acc. Indem. Corp.

• Decision Date: 11 January 2011
• Citation: 81 A.D.3d 223,916 N.Y.S.2d 122
• Parties: ENGLINGTON MEDICAL, P.C., as assignee of Victoria Cruz, respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 122
81 A.D.3d 223

ENGLINGTON MEDICAL, P.C., as assignee of Victoria Cruz, respondent,
v.
MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 11, 2011.

916 N.Y.S.2d 123

Morris, Duffy, Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, N.Y. (Max Valerio and Darya Klein of counsel), for respondent.

JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

LEVENTHAL, J.

81 A.D.3d 225

In this action to recover no-fault medical payments, we consider the nature of proof that the defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC), must tender, on a motion for summary judgment, to support its contention that a person injured in a hit-and-run accident was not a "qualified person" under Insurance Law § 5202(b) because, at the time of the accident, that person owned, and allegedly was operating, an uninsured motorcycle.

Facts

On July 10, 2004, in Brooklyn, then-16-year-old Victoria Cruz was riding her "mini-bike." At the intersection of Liberty Avenue and Schenck Avenue, Cruz was struck and injured by an unidentified vehicle whose driver disregarded a red light. The unidentified vehicle then fled the scene of the accident. Cruz did not have insurance on her mini-bike to cover her resulting medical care. Following the accident, the plaintiff, Englington Medical, P.C. (hereinafter Englington), provided Cruz with medical services. Cruz, by her guardian, assigned Englington her rights to recover, from any responsible insurer or entity, no-fault first-party benefits reflecting the cost of those medical services.

On August 12, 2004, Cruz, by her guardian, submitted a notice of intention to make a claim against MVAIC. In January 2006, after MVAIC failed to provide requested reimbursements to Englington, as assignee of Cruz's no-fault benefits, Englington commenced this action against MVAIC in the Civil Court, Kings County, to recover the cost of the medical services it rendered to Cruz, plus interest and an attorney's fee.

In its answer, MVAIC asserted various affirmative defenses, including an allegation that Cruz was not a "qualified person" within the meaning of article 52 of the Insurance Law.

81 A.D.3d 226

In January 2006 MVAIC moved pursuant to CPLR 3211(a) to dismiss the complaint and, alternatively, pursuant to CPLR 3212 for summary judgment dismissing the complaint. MVAIC argued that (1) the vehicle operated by Cruz was uninsured and owned by her and, thus, she was not a qualified person entitled to recover first-party no-fault benefits or, in the alternative, (2) Cruz was driving a "motorcycle" at the time of the accident, and

916 N.Y.S.2d 124

motorcycle riders are not entitled to recover no-fault benefits. MVAIC further contended that, as such, Englington, as Cruz's assignee, stood in her shoes and, therefore, was similarly not entitled to recover those benefits. MVAIC also argued that it was not required to issue a timely denial of coverage because no coverage existed.

In support of its motion, MVAIC submitted, inter alia, Cruz's notarized notice of intention to file a claim, a copy of the police accident report, and an affidavit from a MVAIC qualifications examiner.

In opposition to the motion, Englington contended that MVAIC did not meet its prima facie burden on its motion for summary judgment since it had not offered proof that Cruz was operating a motorcycle at the time of the accident. Englington argued that, even if Cruz's mini-bike were in fact a motorcycle, it was nonetheless entitled to recover Cruz's no-fault benefits because a mini-bike is not the type of motorcycle that requires insurance. Englington further argued that MVAIC failed to pay or deny its claim within 30 days of receipt.

In an order entered September 11, 2007, the Civil Court denied MVAIC's motion on the ground that MVAIC failed to timely disclaim coverage within 30 days of receiving the claim for no-fault benefits. MVAIC appealed that order to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Appellate Term). In an order dated October 31, 2008, the Appellate Term affirmed the order of the Civil Court, but on different grounds. In a separate order in a related action entitled Greater Health Through Chiropractic, P.C. v. Motor Veh. Acc. Indem. Corp., also dated October 31, 2008, and incorporated in the order appealed from, the Appellate Term stated:

"Although plaintiff's assignor would be ineligible to receive first-party no-fault benefits if her injuries were sustained as a result of her use or operation of

81 A.D.3d 227

a motorcycle, MVAIC failed to submit sufficient evidence establishing that the vehicle she was using or operating at the time of the accident was a motorcycle. As a result, MVAIC's motion for summary judgment was properly denied, albeit on other grounds" ( Greater Health Through Chiropractic, P.C. v. Motor Veh. Acc. Indem. Corp., 21 Misc.3d 133[A], *1, 2008 N.Y. Slip Op. 52178[U], *1-2, 2008 WL 4809425 [App. Term 2d, 11th & 13th Jud. Dists. 2008] [citations omitted] ).

In a decision and order on motion dated March 18, 2009, this Court granted MVAIC leave to appeal from the order of the Appellate Term that was entered in the instant action. For the reasons set forth below, we affirm.

On appeal, MVAIC maintains that it was entitled to summary judgment because it established, prima facie, that Cruz was not a "qualified person" entitled to recover no-fault benefits, as the vehicle which she was operating was owned by her and was not insured. Further, MVAIC argues that Englington is not entitled to recover no-fault benefits because Cruz was operating a "motorcycle" at the time of the accident. Finally, MVAIC contends that the ground upon which the Civil Court denied its motion—its alleged failure to timely disclaim—was improper because MVAIC does not have a duty to timely disclaim where there is a lack of coverage in the first instance.

MVAIC

The New York State Legislature created MVAIC 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"

916 N.Y.S.2d 125

(Insurance Law § 5201). The Legislature's purpose in establishing MVAIC was to afford injured parties the same protection that they would have had the tortfeasor involved in a motor vehicle accident been covered by insurance ( see Morisi v. Motor Veh. Acc. Indem. Corp., 19 A.D.2d 727, 242 N.Y.S.2d 641). This Court has held that the statutory provisions creating and regulating MVAIC should be liberally construed to serve those ends ( see Matter of Dixon v. Motor Veh. Acc. Indem. Corp., 56 A.D.2d 650, 651, 391 N.Y.S.2d 898 [referring to Insurance Law former § 608] ).

The statute requiring MVAIC to pay first-party no-fault benefits reads, in pertinent part, that MVAIC "shall ... provide for the payment of first party benefits to a qualified person for basic...