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Civil Court, City of New York,

ACTIVE CARE MEDICAL SUPPLY, CORP., A/A/O Conde, Raymond, Plaintiffs v. MVAIC, Defendant.

Index No. CV-737966-16/KI

Decided: July 18, 2022

Attorney for Plaintiff: Florence Zabokritsky, Esq. (of counsel), The Rybak Firm, PLLC, 1810 Voorhies Avenue, 3rd Floor, Suite 7, Brooklyn, New York 11235 Attorney for Defendant: Larry Rojak, Esq. (of counsel), Law Offices of Jaime Gangemi, 7820 3rd Avenue, Brooklyn, New York 11209

In this action, plaintiff, Active Care Medical Supply, Corp. sued defendant, MVAIC to recover no-fault benefits for services provided to its assignor, Raymond Conde. Plaintiff's summary judgment motion was granted to the extent it made its prima facie case on the timely mailing and non-payment of its bills. The purpose of trial was to determine (1) whether the assignor is a “qualified person;” (2) whether Insurance Law 508 is applicable, specifically pertaining to the timely filing of a police report; and (3) whether the Statute of Limitations expired. The defendant produced one witness, Ron Johnson, the Qualification Examiner. Plaintiff did not present any witnesses. The accident that gave rise to this action occurred on March 23, 2012. The summons and complaint were filed on October 27, 2016.

Pursuant to Insurance Law § 5221(b)(2), for a person who is allegedly injured (the assignor or applicant) to be deemed a “covered person,” the person must first be a “qualified person” as that term is defined under § 5202(b) and must have complied with all the requirements contained in Insurance Law § 5208. (First Help Acupuncture, P.C. v. MVAIC, 36 Misc. 3d 148(A), 2012 WL 3734391 (App. Term 2012)). The notification requirements of Insurance Law § 5208 requires, filing an accident report within 24 hours of the accident to the police or other enumerated entities, and filing a notice of intention to make a claim with MVAIC within 90 days unless it was “not reasonably possible to make such a report or that it was made as soon as was reasonably possible.” (Insurance Law § 5208). Within the Second Department the burden is on the injured person or his or her assignee to establish compliance with Insurance Law § 5202(b) as a qualified person and the applicable provisions of Insurance Law § 5208 to be deemed a covered person. It then after such determination that Insurance Law Article 51 and the applicable regulation becomes relevant. As such, once the defendant establishes that the assignor has not submitted the requisite forms to qualify, the burden switches to the plaintiff, medical provider to present evidence that “that it had availed itself of the opportunity” to present the evidence. (Cf Jamaica Med. Supply, Inc.v. NY City Tr. Auth., 36 Misc 3d 150(A), 2012 WL 3734451 (App Term 2012)).

Here, the defendant's witness, Mr. Johnson testified that his responsibilities are to review and request documents to determine if an injured person meets the requirement to be qualified for benefits with MVAIC. Mr. Johnson further testified that plaintiff submitted a notice of intention to make a claim, but not the police report. Mr. Johnson testified that defendant then requested written proof that the accident was reported to the police within 24 hours. According to Mr. Johnson, defendant has not received a response from plaintiff regarding the police report. Plaintiff did not present any evidence at trial that demonstrated its assignor complied with the reporting requirements of Insurance Law § 5208.

Plaintiff's reliance on Complete Medical Services, P.C. v. MVAIC, 20 Misc. 3d 85, 864 N.Y.S.2d 665 (App. Term 2d Dep't 2008) is unfounded. Plaintiff argues that the Appellate Term held that the insurer was not entitled to summary judgment because the provider's assignor failed to submit a copy of the police report. However, the Appellate Term held in Meridian Health Acup. v. MVAIC Misc 3d (A) (App. Term 2d Dept 2009) that the police report is a condition precedent to coverage. Therefore, in order to recover no-fault benefits from MVAIC, the plaintiff's assignor “must have complied with all the applicable requirements of Insurance Law article § 52, including, the filing of an accident report within the 24 hours of the occurrence (Insurance Law § 5202(a)(2)(A)) unless a showing is made that it was ‘not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible.’ ” (Meridian Health Acupuncture, P.C. v. MVAIC, 22 Misc. 3d 141(A), 2009 WL 679496 quoting (Insurance Law § 5208(a)(2)(B)). Failure of claimant to verify “that the alleged accident ever occurred or that it was reported to the police within 24 hours” disqualifies claimant from receiving MVAIC benefits. (Akita Med. Acupuncture, P.C. v. MVAIC, 14 Misc. 3d 405, 408, 829 N.Y.S.2d 857 (Nassau Cty. Dist. Ct. 2006)). There has been no showing the qualifying reporting requirements were met. Here, plaintiff neither presented evidence that it was “not reasonably possible to make such a report or that it was made as soon as was reasonably possible.” (Howard M. Rombon v. MVAIC, 21 Misc 3d 131(A), 2008 WL 4712439 (App. Ter, 2d & 11th Jud. Dists. 2008)). Thus, the plaintiff has not met its burden at trial to demonstrate the assignor is a qualified person. This Court finds the assignor is not a covered person pursuant to Insurance Law 5221(b)(2).

For the foregoing reasons, this case is dismissed. The issue of the statute of limitations is moot as the plaintiff does not qualify for the benefits from MVAIC.

This constitutes the Decision and Order of the Court.

Ellen E. Edwards, J.

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