New Jersey Resident Injured by a Commercial Vehicle in New York Found Not to be a "Qualified Person" Entitled to Hit and Run Benefits from MVAIC

AUTO – MVAIC – INSURANCE LAW § 5218 – "QUALIFIED PERSON"
Matter of Thakuri v. Motor Veh. Acc. Indem. Corp.
(Sup. Ct., New York Co., decided 11/18/2010)

Petitioner, a New Jersey resident, made a motion for an order allowing her to commence a personal injury action against the New York Motor Vehicle Accident Indemnification Corporation (MVAIC) for a broken ankle she sustained when she was struck while riding her bicycle in Manhattan by a bus that left the scene of the accident.

In spite of her motion being unopposed, New York County Supreme Court Justice Eileen Rakower DENIED petitioner's application, finding that since New Jersey no-fault law does not afford protection for injuries from being struck by commercial vehicles, petitioner did not meet the definition of a "qualified person" under New York Insurance Law § 5202(b):

Insurance Law §5202(b) states, in relevant part:

"Qualified person" means (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[.]

On her police accident report, petitioner lists her address as "518 North 5 Street Harrison NJ 07029." On her Notice of Intention to Make a Claim form, pay stub, household affidavit; and hospital records, petitioner lists her address as 17 Davis Street Harrison, NJ. The court in Simon v. Motor Vehicle Acc Indemnification Corp., 83 AD2d 803 (1st Dept. 1981) found:

The record before this Court demonstrates that claimant is not a qualified person.   The no-fault statute in the State of New York applies to commercial vehicles, while the statute in the State of New Jersey only applies to passenger cars. Coverage for injuries sustained while being struck by a commercial van are not covered under New Jersey law.(where a New Jersey resident was struck by a commercial van that left the scene of the accident.)

In the police report, the offending vehicle is described as an "unknown bus." In her MVAIC paperwork, petitioner checks the option for "A Bus or School Bus," next to "the type of vehicle" that hit her.  There is no evidence that the bus involved in the accident was not a commercial vehicle.  Here, as in Simon, petitioner has failed to show that New Jersey would afford reciprocal coverage to a New York driver and, thus, is not considered a "qualified person" for purposes of commencing a lawsuit against MVAIC.

Where Owners and Operators of Vehicles Involved in Accident Are Known, No Direct Action Against MVAIC is Permitted, Even if the Vehicles are Uninsured

AUTO – "QUALIFIED PERSON" – DIRECT ACTION AGAINST MVAIC – INSURANCE LAW § 5218
Matter of Vega v. Motor Veh. Acc. Indem. Corp.
(Sup. Ct., Kings Co., decided 2/1/2010)

New York Insurance Law § 5218(a) sets forth the procedure for commencing a direct action against MVAIC in hit and run cases:

Any qualified person having a cause of action for death or personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was at the time of the accident, in the possession of a person without the owner's consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.

Petitioner knew the identity of the owner and operator of the vehicles involved in the accident in which she was seriously injured, but argued that because they were uninsured, she should be permitted to bring a direct action against MVAIC.

Kings County Supreme Court Justice Francois Rivera disagreed and dismissed her petition for an order allowing her to bring a direct action against MVAIC, holding that she first must bring a direct action against the uninsured motorist(s):

Insurance Law § 5218 permits suit directly against MVAIC where a person has been injured by an automobile and cannot establish the identity of the owner and operator or the vehicle was used without the owner's consent by an unknown person (Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). MVAIC contends that petitioner did not demonstrate that she is a qualified person pursuant to Article 52 of the Insurance Law because the identity of the owner and operator of the vehicle involved in her accident is known. 

*  *  *  *  *

Petitioner's motion papers conclusively established that the underlying incident was not a hit and run accident as defined by Insurance Law § 5218. The identity of the owner and operator is known. Accordingly, there is no basis for permitting a direct action against MVAIC (see, Rogers v. Motor Vehicle Accident Indemnification Corporation, 300 AD2d 1000 [4th Dept. 2002]; see also, Villanueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]). 

Petitioner must bring a direct action against the uninsured motorist. Depending on what happens thereafter, petitioner may be able to bring MVAIC into the action. For example, Insurance Law § 5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist (see Villanzueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]). MVAIC may do so on its own or pursuant to a motion to compel brought by the qualified injured plaintiff (see Naula v. Dela Puente, 48 AD3d 434 [2nd Dept. 2008] citing Viuker v. Allstate Insurance Co., 70 AD2d 295 [2nd Dept. 1979]). Or the petitioner may pursue and obtain a judgment against the uninsured motorist and seek recovery from MVAIC pursuant to Insurance Law § 5210 (see Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). In either example, however, the relevant statute contemplates that the action was already commenced against the motorist. Neither Insurance Law §§ 5209 or 5210 contemplates or authorize a direct action against MVAIC.

Obtaining Written Report of Hit-and-Run Accident Not Always Required for Claim Against MVAIC

UM – HIT-AND-RUN ACCIDENT – CLAIM TO MVAIC – REPORT TO POLICE WITHIN 24 HOURS
Matter of Gurvich v. Motor Veh. Acc. Indem. Corp.
(2nd Dept., decided 10/6/2009)

One precondition to securing uninsured motorists benefits from New York's Motor Vehicle Accident Indemnification Corporation (MVAIC) for injuries sustained in a hit-and-run accident is that the claimant "[r]eport the accident to the police, justice of the peace, a judge, or the Motor Vehicle Commissioner within twenty-four (24) hours after the accident[.]"

The New York courts liberally interpret what constitutes a satisfactory "report".  In this matter, the claimant commenced this special proceeding pursuant to Insurance Law § 5218(c) for leave to commence an action against MVAIC, which opposed the petition based on its assertion that the claimant had failed to report the hit-and-run accident to the police within 24 hours.  Kings Supreme rejected MVAIC's contention and granted the petition, leading to this appeal.

In AFFIRMING the order granting claimant's petition, the Second Department, held:

The Motor Vehicle Accident Indemnification Corporation opposed the petition for leave to commence an action against it on the ground that the petitioner failed to report the subject accident to the police within 24 hours of the occurrence. However, the courts have "consistently afforded a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator's obtaining a written report" (Matter of Country Wide Ins. Co. [Russo], 201 AD2d 368, 370; see Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509; Matter of Dixon v Motor Veh. Acc. Indem. Corp., 56 AD2d 650). Under the circumstances of this case, sufficient notice of the accident was timely given to the police.

The decision does not reveal what the "circumstances of this case" were that the motion and appellate courts found constituted sufficient notice of the accident to the police.  However, it appears the claimant had not obtained a written accident report from the police, something the courts rules was not fatal to her MVAIC claim. 

A Spate of No-Fault Decisions from the Appellate Term, Second Department

NO-FAULT – NOTARY PUBLIC'S JURAT – TECHNICAL DEFECT – PEER REVIEW – MEDICAL NECESSITY
Complete Orthopedic Supplies, Inc. a/a/o Ana Valencia v. State Farm Mut. Auto. Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Appeal from a Queens Civil judgment for plaintiff DME provider on its motion for summary judgment.

REVERSED and State Farm's cross motion for summary judgment was granted. The notary public's jurat was missing the year State Farm's affidavits of mailing were signed. The Appellate Term held that this was a "technical defect" that the Civil Court should have disregarded since it did not prejudice a substantial right of a party, and plaintiff had raised no objection to it. State Farm's affirmed peer review report established prima facie that there was no medical necessity for the supplies provided by plaintiff, which proof plaintiff did not rebut. As a result, State Farm's cross motion for summary judgment dismissing the complaint should have been granted.


NO-FAULT – UNTIMELY SUBMISSION OF CLAIMS
Long Is. Multi-Medicine Group, P.C. a/a/o Sumira Lund v. Travelers Ins. Co.
(App. Term, 2nd Dept., decided 1/8/2009)

Appeal from a Queens Civil judgment for plaintiff on its motion for summary judgment.

AFFIRMED. Civil Court had granted plaintiff's motion based on its finding that Travelers waived its defense of claim submission untimeliness, since it failed to advise plaintiff that the claim would be reconsidered upon a showing of impossibility to timely submit the claims. The Appellate Term affirmed the judgment, not on that ground, but because Travelers' opposition motion papers annexed denial of claim forms that did not correspond to the claim forms upon which plaintiff sought summary judgment. As such, the court held that Travelers had failed to establish that it timely denied the subject claims and, as such, failed to raise a triable issue of fact with respect to the claims at issue.


NO-FAULT – ADMISSIBILITY OF BUSINESS RECORDS
Union Physician Healthcare, P.C. a/a/o Christopher Kelly v. Utica Mut. Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Appeal from a Kings Civil judgment for plaintiff on its motion for summary judgment.

REVERSED and plaintiff's motion denied. The affidavit by plaintiff's officer submitted in support of plaintiff's motion for summary judgment failed to lay a proper foundation for the admission of the documents annexed to plaintiff's moving papers and, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff's officer was insufficient to demonstrate that he possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).


NO-FAULT – MVAIC – NOTICE OF CLAIM – INSURANCE LAW § 5208(A)
M.N.M. Med. Health Care, P.C. a/a/o Erick Papillion v. MVAIC
(App. Term, 2nd Dept., decided 1/9/2009)

Appeal from a Queens Civil order denying defendant MVAIC's motion for summary judgment.

REVERSED and MVAIC's motion granted, dismissing the complaint. The filing of a timely affidavit providing MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from MVAIC pursuant to New York Insurance Law § 5208(a). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a "covered person" who is entitled to recover no-fault benefits from MVAIC. MVAIC's submissions in support of its motion for summary judgment made a prima facie showing that plaintiff's assignor failed to timely file a notice of claim. By defaulting on the motion, plaintiff did not demonstrate that its assignor timely filed a notice of claim or sought leave to file a late notice of claim. Thus, MVAIC's motion for summary judgment should have been granted.


NO-FAULT – NOTICE TO ADMIT – PRIMA FACIE CASE SHOWING
All Mental Care Medicine, P.C. a/a/o Augustin Martes v. State Farm Mut. Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Vista Surgical Supplies, Inc. a/a/o Tyrone Pearson v. State Farm Mut. Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Judgments for State Farm dismissing the complaints AFFIRMED. An admission that defendant received plaintiff's claim form is not a concession of the facts set forth in said claim form (Bajaj v General Assur. Co., 18 Misc 3d 25, 28 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). By only submitting the notices to admit and producing no witnesses at trial, plaintiffs failed to make a prima facie case for recovery of no-fault benefits.


NO-FAULT – MOTION TO AMEND ANSWER TO ADD AFFIRMATIVE DEFENSES – RES JUDICATA – COLLATERAL ESTOPPEL BASED ON PRIOR ARBITRATION DECISION – FRAUDULENTLY INCORPORATED PC
Uptodate Med. Serv., P.C. a/a/o Jean Alberic v. State Farm Mut. Auto. Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Appeal from a Queens Civil judgment for plaintiff on its motion for summary judgment.

REVERSED, granting State Farm's motion to amend its answer and, upon such amendment, summary judgment dismissing the complaint. The Civil Court improperly denied State Farm's motion to amend its answer to add the affirmative defenses of res judicata and collateral estoppel. Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit. State Farm sought to add those affirmative defenses because there was a prior arbitration proceeding between the parties in which plaintiff had sought to recover assigned first-party no-fault benefits for services rendered from August 2003 through January 14, 2004, in which proceeding the arbitrator had determined that plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation. Plaintiff did not demonstrate prejudice or surprise from the proposed amendment.

State Farm established that the issue of whether plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation was identical to the issue previously decided by the arbitrator. In opposition to State Farm's cross motion, plaintiff failed to address the branch of the cross motion which sought summary judgment dismissing the complaint on the ground of collateral estoppel. Therefore, plaintiff failed to establish that it did not receive a full and fair opportunity to litigate in the arbitration proceeding. Thus, the branch of defendant's cross motion seeking summary judgment should have been granted.


NO-FAULT – ADMISSIBILITY OF BUSINESS RECORDS
V.S. Med. Servs., P.C. a/a/o Mohamad Nazir v. Travelers Ins. Co.
(App. Term, 2nd Dept., decided 1/9/2009)

Appeal from a Queens Civil judgment after non jury trial for Travelers dismissing plaintiff's complaint.

AFFIRMED. While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]).

You Didn't Lose, So Why Are You Here?

NO-FAULT – RIPENESS OF CLAIM AGAINST MVAIC – REQUIREMENT OF EXHAUSTING REMEDIES AGAINST STRIKING VEHICLE'S OWNER
Modern Art Medical, P.C. a/a/o Espiridion Mejia v. MVAIC
(App. Term, 2nd Dept., decided 12/31/2008)

Before a claimant may proceed with a claim against MVAIC, he must, among other things, exhaust all legal remedies against a known driver or owner of the offending vehicle.

New York Insurance Law § 5218(c) provides:

§ 5218. Procedure for "hit and run" cases.

(c) In any action in which the plaintiff is a qualified person, for the death of, or bodily injury to, any person arising out of the ownership, maintenance or use of a motor vehicle in this state and judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle: (i) the identity of which, and of the owner and operator of which, has not been established, or (ii) which was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established, that ground shall be stated in the judgment. The plaintiff, upon complying with paragraph one of subsection (a) of section five thousand two hundred eight of this article, may within three months from the date of the entry of the judgment make application to bring an action upon the cause against the corporation in the manner provided in this section.

Plaintiff medical provider sued MVAIC for no-fault benefits and moved for summary judgment.   Queens Civil granted plaintiff's motion and MVAIC appealed. 

In REVERSING the Civil Court's order, the Appellate Term, Second Department, reminded:

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which plaintiff's assignor was driving at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). Accordingly, since plaintiff did not demonstrate that it exhausted its remedies against the owner of the vehicle which allegedly struck plaintiff's assignor, plaintiff's motion for summary judgment should have been denied.

Presumably, the legal remedy plaintiff medical provider did not exhaust would not have been against the vehicle's owner, but against the owner's no-fault insurer.  This is, after all, a claim for no-fault coverage benefits.

Arbitration Award Vacated -- Court Holds that MVAIC Was Not Obligated to Investigate Whether Claimant Was a "Qualified Person" & Deny Coverage Until It Was Clear that Adverse Vehicle Was Uninsured

NO-FAULT – MVAIC – "QUALIFIED PERSON" – TIMELY DISCLAIMER
Matter of MVAIC v. NYC East-West Acupuncture, P.C.
(Sup. Ct., New York Co., decided 10/31/2008)

In this case, MVAIC successfully moved pursuant to CPLR § 7511 to vacate an arbitration award of no-fault benefits to the respondent acupuncture provider based on MVAIC's argument that it had wrongly been denied the chance to establish that the claimant-assignor had her own auto insurance and, therefore, was not a "qualified person" entitled to no-fault benefits from MVAIC.

The subject motor vehicle-pedestrian accident occurred on September 21, 2003, and the license plate of the motor vehicle was traced to a car insured by GEICO.  The claimant treated with the respondent provider, which initially submitted is bills to GEICO, which denied coverage based on its investigation indicating that its insured was not involved in the loss.  The claimant then completed and submitted a Notice of Intention to Make Claim and Affidavit of No Insurance to MVAIC in December 2003. MVAIC denied no-fault benefits to the claimant and her assignee in January 2004, based on its position that there should be no-fault coverage available from GEICO.

The claimant commenced a personal injury action against GEICO's insured, but failed to respond to discovery demands, and her suit was dismissed.  In 2007, the respondent provider demanded arbitration against both MVAIC and GEICO and ultimately was awarded payment of its $4,302.79 in bills from MVAIC. 

During the course of the arbitration proceedings, when it became apparent that GEICO might be held not to be responsible for affording no-fault coverage, MVAIC began investigating whether the claimant had other auto insurance available to her and, therefore, would not be a "qualified person" under Insurance Law § 5202(b)(i).  MVAIC attempted but was denied the opportunity to present evidence of the claimant's insurance at an arbitration hearing, the original arbitrator ruling that MVAIC was under an obligation to investigate the claimant's insured status from first notice of her claim and failed to issue a denial of the claim within 30 days of receipt of the Notice of Claim, as required by 11 NYCRR § 65-3.8(a)( l), or failed to otherwise seek to toll the 30-day period by requesting verification.  The MAster Arbitrator upheld the award, and MVAIC commenced this special proceeding pursuant to CPLR §7511 to vacate the award.

In granting MVAIC's motion to vacate the award and finding that MVAIC has not violated the 30-day pay or deny rule, New York County Supreme Court Justice Joan Lobis held:

MVAIC was created by the Legislature, pursuant to Article 52 of the Insurance Law, to pay damages for bodily injuries to innocent victims of of motor vehicle accidents caused by uninsured motorists. To recover MVAlC benefits, the injured individual must be eligible for MVAIC benefits.  Insurance Law § 5202(b) defines a "qualified person" 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.” (Emphasis added.) If in fact Ms. Li had valid insurance coverage at the time of the accident, she is not a "qualified person."  Univeral Acupuncture Pain Services P.C. v. MVAIC, 13 Misc. 3d 1244(A) (Table), 2006 WL 35 10617 (Dist. Ct., Nassau Co. 2000).  Until it was clear that GEICO was not responsible, MVAIC had no responsibility to investigate whether Chun Hong Li may have given false information on the MVAIC forms as to whether or not she was insured.  The essence of MVAIC's argument is that this is a "lack of coverage", since Ms. Li would not be covered by MVAIC if she has other insurance.

* * * * *

Therefore, since lack of coverage goes to the heart of whether the claim is legitimate, the issue of lack of coverage may be raised at any time. Under these unique circumstances, the arbitrator’s failure to grant MVAlC’s request is deemed to constitute "an abuse of discretion consitituting misconduct within the meaning of CPLR 7511(b)(1)(i)", since it resulted in "the foreclosure of the presentation of pertinent and material evidience. " (Citations omitted.)

Question of Fact Found on Whether Assignor Was a "Qualified Person" Entitled to No-Fault Benefits from MVAIC

NO-FAULT – MVAIC – "QUALIFIED PERSON" – TIMELY DISCLAIMER
Howard M. Rombon, Ph.D, P.C. a/a/o Francisca Ruiz-Diaz v. MVAIC
(App. Term, 2nd Dept., decided 10/27/2008)

The New York Motor Vehicle Accident Indemnification Corporation (MVAIC) was established to pay bodily injury damages and no-fault benefits to “qualified” victims of motor vehicle accidents caused by uninsured motorists.

New York Insurance Law § 5221 provides:   

No-fault" benefits to qualified persons.  (a) The terms "basic economic loss", "first party benefits", non-economic loss", "serious injury", "motor vehicle", "insurer", "uninsured motor vehicle" and "covered person", as used in this section, shall have the same meaning given them in section five thousand one hundred two of this chapter.
(b) (1) Notwithstanding the provisions of this article, the corporation 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.
(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 § 5202(b) defines a "qualified person", in part as, as:

(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.

In less legalistic, more straightforward terms,  MVAIC's website gives this explanation of what a "qualified person" is:

QUALIFIED PERSON is a resident of New York State or a resident of another state or country having a substantially similar program available to New York State residents injured in that state or country. A QUALIFIED PERSON is someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle. An example of a QUALIFIED PERSON is a pedestrian residing in New York State who does not own a motor vehicle and does not qualify as an insured person under any automobile liability insurance policy, who is struck by an uninsured motor vehicle in New York State.

Plaintiff medical provider brought this action to recover assigned no-fault benefits and moved for summary judgment.  Defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) cross-moved for summary judgment, arguing, that plaintiff's assignor was not a qualified person because she did not provide MVAIC with proof that she was a resident of the State of New York.  Queens Civil granted plaintiff's motion for summary judgment and denied MVAIC's cross motion. MVAIC appealed.

In REVERSING the order appealed from and denying summary judgment to plaintiff, the Appellate Term, Second Department, held:

 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). Based upon a review of the moving and cross-moving papers, we find an issue of fact exists as to whether plaintiff's assignor is a "qualified person" and, thus, whether she is a "covered" person entitled to rights under Insurance Law article 51 (see Insurance Law § 5221 [b] [2]; Zuckerman v City of New York, 49 NY2d 557 [1980]). 

Plaintiff provider argued that MVAIC's disclaimer of no-fault benefits was untimely.  In rejecting that argument, the Appellate Term ruled:

We note that MVAIC's failure to establish that it timely denied plaintiff's claims is of no consequence since an assertion that there is a lack of coverage may always be raised (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary.