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Civil Court, City of New York,

Maria S. MASIGLA, P.T. a/a/o Jean Baptiste, v. MVAIC, Defendant.


Decided: May 03, 2021

Plaintiff: Florence Zabokritsky of Counsel to The Rybak Firm PLLC, 1810 Voorhies Avenue, 3rd Floor Suite 7, Brooklyn, NY 11235, (718) 975-2035 Defendant: Lawrence Rogak of Counsel to Law Office of Jamie E. Gangemi, 100 William Street, 14th Floor, New York, NY 10038, (646) 205-7880

Plaintiff, medical provider, Maria S. Masigla (hereinafter “Plaintiff”), as assignee of Jean Baptiste (hereinafter “Assignor”), commenced these actions to recover assigned first-party no fault benefits from MVAIC (hereinafter “Defendant”), for a medical services performed on the assignor following a motor vehicle accident, which occurred June 4, 2012. The three actions were filed separately under Kings County Index Numbers 026628-15, 026655-15 and 043846-15, respectively. The Court joined the three actions for trial on March 11, 2021, without objection.

Both parties entered into a stipulation on December 19, 2017, wherein it was agreed that the sole issue for trial was assignor's eligibility for coverage and any other defenses raised in defendant's answer. In the stipulations signed by both parties prior to trial, it was agreed that plaintiff established its prima facie burden in the instant actions. Based on the foregoing, the Court finds that plaintiff has established its prima facie burden in all three cases.

At trial, on March 11, 2021, the parties agreed that an accident occurred, and that the claimant testified, at an Examination Under Oath (hereafter “EUO”) that the car he was driving at the time had been sold to a friend previously. It was also agreed that the vehicle in this accident was uninsured on the date and time of the accident. The parties also stipulated that at the time of the accident, the claimant had borrowed the car back from the friend to whom it had been sold. The sole issue of fact before the Court's was whether the assignor had been in possession of the vehicle for sufficient time to make him the de facto owner. Plaintiff objected to the use of the EUO testimony as evidence in this matter, stating that the provider was never sent a copy of the EUO and that the provider was not on notice that an EUO would be held. Thus, plaintiff argued the EUO transcript was inadmissible. Plaintiff did not present the assignor as a witness in this action and plaintiff objected to there being no witnesses to testify to the ultimate fact to be determined.

For a person to be considered a “qualified person” by MVAIC, Insurance Law § 5202(b)(1) states:

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.

Insurance Law § 5202(b)(1)

Insurance Law § 5201, provides that:

The legislature finds and declares that the motor vehicle financial security act in the vehicle and traffic law, which requires the owner of a motor vehicle to furnish proof of financial security as a condition to registration, fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by:

(1) uninsured motor vehicles registered in a state other than New York,

(2) unidentified motor vehicles which leave the scene of the accident,

(3) motor vehicles registered in this state as to which at the time of the accident there was not in effect a policy of liability insurance

Insurance Law § 5201

For a person to be found to be a “qualified person” eligible for benefits from MVAIC, admissible proof must be presented by plaintiff to establish they were qualified. Once that burden is met, MVAIC must present, admissible evidence that assignor was not a “qualified person.”

Defendant argues that the EUO, held on December 5, 2012, dispositively proved that the assignor was in possession of the subject vehicle for more than 30 days and therefore, as the de facto owner was an unqualified person, ineligible to received MVAIC benefits. The sole evidence offered at trial on this issue are the EUO transcript of the assignor held and a letter to the assignor, which purportedly accompanied the EUO transcript.

Hearsay is defined as statements made outside of Court sought to be introduced for the truth of the matter asserted. People v. Nieves, 67 NY2d 125, 492 [1986]. Hearsay is admissible only if it falls into an exception to the hearsay rules. Id. Plaintiff argues that the EUO transcript is inadmissible on the basis that it does not fall into any of the hearsay exceptions. Plaintiff argues that pursuant to CPLR § 3117 (a)(2):

the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence

CPLR § 3117 (a)(2)

Plaintiff relies upon Mia Acupuncture, P.C. v. Mercury Ins., which held that “[b]y virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees.” Mia Acupuncture, P.C. v. Mercury Ins. Co., 26 Misc 3d 39, 40 [App. Term, 2d Dept, 2009]. Plaintiff also argues that pursuant to, CPLR § 3117(a)(3)(iv), an EUO transcript may be entered into evidence in the event, “that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts.” Plaintiff argues that defendant had failed to make any showing that “diligent efforts” have been made to procure the witness whose EUO transcript they seek to rely upon.

Defendant urges the Court to find that the EUO transcript falls into a hearsay exception as a party admission against interest. Defendant inaptly relies upon Zalot v Zieba, which is a case involving a summary judgment motion in which Second Department ruled that a deposition was in fact admissible. Zalot v Zieba, 81 AD3d 935, 917 [App. Term, 2d Dept, 2011]. However, Zalot, was based on a summary judgement motion, in which facts contained in the motion papers are deemed as true if not disputed by admissible evidence. In the mater sub judice, there is an objection by plaintiff to purported hearsay. Absent admissible evidence, defendant cannot support its contentions. Defendant also relies upon a First Department case, American States Ins. Co. v Huff, 119 AD3d 478 [1st Dept 2014], stating that the Court should apply the First Department's holding in Huff to the instant matter permitting the EUO transcript to be entered into evidence. However, the facts in Huff differ substantially from those before this Court. The Huff Court explicitly states that the defendant does not contest what happened during the EUO. Id. In this case, plaintiff has objected to the admissibility of the EUO and they were neither present nor notified of the EUO. Moreover, the EUO in Huff was used to demonstrate that the assignor left in the middle of the EUO, which is readily distinguishable from an effort to use the assignor's EUO testimony solely to prove the ultimate fact to be determined at trial. Huff is inapplicable.

The Court finds that defendant failed to establish that the assignor's EUO transcript should be treated as an exception to the hearsay rule as a statement against interest. In a similar matter, JSI Expert Serv. v. Liberty Mut. Ins. Co., 7 Misc 3d 1000 (A) [NY Civ. Ct. March 23, 2005], the defendant attempted to use an EUO transcript as evidence at trial claiming, that the EUO transcript was a hearsay exception because it was an admission against interest. In JSI Expert Serv., the Court found that the “New York doctrine,” which states “In New York declarations of a vendor or assignor of a chattel or chose in action, whether made before or after the transfer, are inadmissible to affect the claim or title of a subsequent transferee for value” was applicable and therefore, the hearsay exception for admission against interest was inapplicable. Id. quoting Richardson on Evidence, Farrell 11th ed., §§ 8-239 and 8-241.

Similarly, in this matter plaintiff argues that the “New York Doctrine” is applicable and therefore, the EUO is not admissible. This is the same argument adopted by the Court in JSI Expert Serv. In 2006, this issue was again visited and it was held that, “the declarations of an assignor, whether made before or after the assignment, are inadmissible as against the assignee.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006]. The Court finds the Court's decisions in JSI Expert Serv. and CPT Med. Serv, to be persuasive, and that the “New York doctrine” in applicable in this instance therefore, the EUO testimony is hearsay and not admissible.

Defendant has failed to show the assignor was an unavailable witness as required to admit a deposition testimony, per CPLR § 3117(a)(3)(iv). The decision in CPT Med. Serv., PC, directly addresses this issue when the Court held, “while it is well established that the statements made by an assignor (though a nonparty) in an EUO may be offered by a defendant insurer against a provider/assignee to prove a lack of coverage defense in opposition to a summary judgment motion despite being hearsay, EUO statements are nonetheless hearsay. As such, such statements are inadmissible at trial unless, for example, they are used for impeachment purposes upon cross-examination in the event such declarant/assignor testifies.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006] [internal citations omitted]. It is important to note that CPT Med. Serv. does provide for the defendant to raise viable defenses so long as they cannot be established by, or proven without, inadmissible hearsay. Id. In this case, defendant was provided with the opportunity to provide the court with admissible evidence or witnesses at trial to establish that the assignor was unqualified for MVAIC benefits and instead relied on inadmissible hearsay evidence as the sole basis for their defense in this matter.

Thus, the Court finds that plaintiff has established its prima facie burden. Plaintiff has additionally established that assignor was uninsured and eligible for MVAIC coverage at the time of the accident, insofar as the parties stipulated that the assignor was uninsured at the time of the accident. Defendant has failed to prove by admissible evidence that plaintiff's assignor was an unqualified person, due to having been in possession of the uninsured vehicle for more than thirty days. Plaintiff is entitled to MVAIC benefits in all three of the matters consolidated for trial.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that judgement be entered in favor of plaintiff in the sum of $4,186.71 for index 43846-15, $4,178.10 for index 26655-15, and $2,029.50 for index 26628-15 plus costs, disbursements, interest, and attorneys fees for all three index numbers referenced.

Jill R. Epstein, J.

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Docket No: CV-026628-15

Decided: May 03, 2021

Court: Civil Court, City of New York,

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