Heal Rite, P.T., P.C., as Assignee of Jawan Copridge, Lorraine Thompson, Anggie Aguirre, and Andre Farquhar, Respondent, v. MVAIC (2023)

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff's cross motion seeking summary judgment upon the claim to recover for services rendered to Jawan Copridge is denied, and so much of the order as granted the branches of plaintiff's cross motion seeking summary judgment upon the claims to recover for services rendered to Lorraine Thompson, Anggie Aguirre, and Andre Farquhar is vacated.

In this action by a provider to recover assigned first-party no-fault benefits rendered to four assignors, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order as, upon granting, pursuant to CPLR 603, MVAIC's motion to sever the claims relating to each assignor into separate actions, granted plaintiff's cross motion for summary judgment as to all the claims.

Upon granting MVAIC's motion to sever the claims pertaining to each assignor from one another, only the claim to recover for services rendered to the first captioned assignor, Jawan Copridge, remained before the court. As the claims seeking to recover for services rendered to the remaining assignors, Lorraine Thompson, Anggie Aguirre, and Andre Farquhar, were severed and no longer before the court (see CPLR 603; Regal Acupuncture, P.C. v MVAIC, 76 Misc 3d 128[A], 2022 NY Slip Op 50784[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Arcadia Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 65 Misc 3d 140[A], 2019 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), the Civil Court should not have passed upon them. Consequently, we vacate so much of the order as related to those claims.

"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 [Jawan Copridge] is a 'qualified person' and, thus, whether [he] 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])" (Howard M. Rombon, Ph.D, P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U], *1-2 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Consequently, the branch of plaintiff's cross motion seeking summary judgment upon the claim seeking to recover for services rendered to Jawan Copridge should have been denied.

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff's cross motion seeking summary judgment upon the claim to recover for services rendered to Jawan Copridge is denied, and so much of the order as granted the branches of plaintiff's cross motion seeking summary judgment upon the claims to recover for services rendered to Lorraine Thompson, Anggie Aguirre, and Andre Farquhar is vacated.

BUGGS, J.P., and OTTLEY, J., concur.

VENTURA, J., taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 3, 2023