The shoe is on the other hand now

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 2011 NY Slip Op 00217 (App. Div., 2nd 2011)

In this regard, although the defendants stated, in their motion for summary judgment, that they first received the no-fault bill on May 7, 2009, or on May 9, 2010, the defendant did not establish that fact by submitting a copy of the bill [*2]received on one of those dates. Therefore, the defendants failed to submit evidence raising a triable issue of fact as to whether they timely denied the claim after issuing timely requests for additional verification (see 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317).

Moreover, although the defendants contend that they submitted evidence showing that the plaintiff's assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as a result of their untimely denial of the claim (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 564; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047).

Although the defendants contend, on appeal, that North Carolina law should apply to this action, and that New York law does not preclude them from denying coverage, they did not raise that specific argument before the Supreme Court. Consequently, that contention is not properly before this Court (see Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1268; Matter of Panetta v Carroll, 62 AD3d 1010). 

 Another App. Div. no-fault case:

Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 2011 NY Slip Op 00176 (App. Div., 2nd 2011)

Generally, motorcycle riders, whether operators or passengers, are not entitled to first-party no-fault insurance benefits from MVAIC (see Insurance Law § 5103[a][1], [2]; see also Quinones v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 1007[A], 2004 NY Slip Op 51729[U]; 2-27 New Appleman New York Insurance Law § 27.04[3] [2d ed] ["Occupants of a motorcycle are excluded from coverage and are never entitled to no-fault benefits"]). A motorcycle is defined in the Insurance Law as "any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law" (Insurance Law § 5102[m] [emphasis added]). The Vehicle and Traffic Law defines a motorcycle as a "motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor" (Vehicle and Traffic Law § 123). Pursuant to the Vehicle and Traffic Law, class C motorcycles, which have a maximum speed of 20 miles per hour, are not required to carry insurance (see Vehicle and Traffic Law §§ 121-b, 2265[3]). Construing these provisions together, the operator of or passenger on a class C motorcycle is entitled to no-fault benefits in the absence of any other statutory preclusion of benefits (see Tyler v Traveler's Ins. Co., 110 Misc 2d 471, 473 [operators of and passengers on "class C mopeds, minibikes and go-carts are entitled to first-party benefits under no-fault"]; 2-27 New Appleman New York Insurance Law § 27.04[3] ["Occupants of . . . limited-use class C motorcycles will not be excluded from coverage"]). Thus, not all motorcycles are required to carry insurance. 
MVAIC's Motion for Summary Judgment

On its motion for summary judgment, MVAIC had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 561). To meet its burden, MVAIC was required to establish, prima facie, that Cruz was not a "qualified person" entitled to no-fault benefits either because she owned an uninsured vehicle despite being statutorily required to carry insurance, or because, at the time of the accident, she was operating a "motorcycle" within the meaning of Insurance Law § 5102(m). Here, MVAIC failed to meet its burden.

The only admissible evidence proffered by MVAIC as to the type of vehicle that Cruz was operating when the accident occurred was a form completed on her behalf, setting forth her notice of an intention to make a claim for no-fault benefits (hereinafter the claim form). The claim form was signed by Priscilla Garcia—Cruz's mother and guardian—and indicated that Cruz was the owner and operator of a vehicle designated as vehicle #1, which was described as a "2004 Mini-Bike" for which no insurance existed. Critically, the make and model of the vehicle designated as vehicle #2 is listed as "unknown." Clearly, the term "Mini-Bike" refers to some type of [*4]motorized, two or three-wheeled vehicle (see Oxford English Dictionary Online, [accessed July 27, 2010] [defining "minibike" as "(a) small motorcycle with a low-power engine, designed for off-road use and sometimes having three wheels]; Merriam-Webster Online Dictionary, [accessed July 27, 2010] [defining "minibike" as "a small one-passenger motorcycle with a low frame and raised handlebars"]). Nevertheless, the use of the word "Mini-Bike" in the claim form, standing alone, is insufficient to establish whether Cruz's vehicle was or was not a class C motorcycle with a maximum speed of 20 miles per hour, because the critical factor in determining a motorcycle's class is its maximum speed (see Vehicle and Traffic Law § 121-b). Thus, MVAIC failed to establish that the vehicle that Cruz was operating was either an uninsured motor vehicle for which she was required to carry insurance, or a motorcycle of a class which required her to carry insurance.

Since MVAIC failed to meet its prima facie burden on its motion for summary judgment, the burden never shifted to Englington to submit, in proper admissible form, evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), despite MVAIC's contention that Englington had the burden of proving that Cruz's vehicle was not required to carry insurance, and failed to meet that alleged burden. In its brief, MVAIC asserts that "[i]t is well settled in this Department that the party seeking benefits from MVAIC bears the burden of establishing that the injured party is a qualified person' who complied with all applicable requirements of Article 52." However, in light of the procedural posture of this case, MVAIC misconstrues the burden applicable to the parties, which is a fundamental aspect of a motion for summary judgment. As the movant, MVAIC must first come forward with admissible evidence demonstrating, prima facie, the absence of material issues of fact and that, on those facts, it is or would be entitled to judgment as a matter of law. MVAIC's burden on a motion for summary judgment cannot be satisfied merely by pointing out gaps in the plaintiff's case (see e.g. Shafi v Motta, 73 AD3d 729, 730; Gamer v Ross, 49 AD3d 598, 600; Totten v Cumberland Farms, Inc., 57 AD3d 653, 664; DeFalco v BJ's Wholesale Club, Inc., 38 AD3d 824, 825).


Two no-fault decisions from App. Term. 1st

Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51605(U) (App. Term, 1st 2010)

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an EUO provision, since the subject claim arose out of an accident that occurred in 2007, at a time when the policy necessarily would have contained such a provision (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]; cf. SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In any event, even assuming, arguendo, that the policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103[h]). Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51606(U) (App. Term, 1st 2010)

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). We note in this connection that the affidavit of plaintiff's employee attesting to plaintiff's standard office mailing procedures created a presumption of mailing of the subject claim, and, in any event, defendant acknowledged receipt of the claim (see Fair Price Med. Supply Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant, which bore the burden of proving its lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]), failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff's assignor's loss arose from the use or operation of an uninsured motor vehicle (see Insurance Law § 5221[b]).

We reject defendant's contention that, pursuant to Insurance Law § 5225, it is exempt from paying plaintiff "statutory interest, statutory attorneys' fees and costs," since the plain language of that statute only exempts defendant from paying certain "taxes and fees" imposed by state and local governments. Defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.

In the MVAIC case, the § 5225 argument was absolute nonsense.  In a sort of related note, I'm looking for the case that says MVAIC gets an automatic stay on appeals.

Pardon this brief interruption for no-fault

From time to time I'm going to post no-fault cases.  Not because anyone cares, but so that I will have a place to find them.  Nothing to see here.

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 2010 NY Slip Op 20308 (Civ Ct City NY, Kings County, 2010)

It should be noted that the surgery section of the Fee Schedule denotes different percentages of payment based on whether a participating surgeon is acting as a "Surgical Assistant" or a "Co-Surgeon". A Surgical Assistant bills at 16%, while Co-Surgeons are directed to apportion billing in relation to the responsibility and work done. (See New York Workers' Compensation Fee Schedule, Surgery, page 4). Defendant's witness did not offer testimony regarding whether Plaintiff should have billed as a Surgical Assistant or a Co-Surgeon. Plaintiff's rebuttal witness, Dr. Giugliano , testified that the classifications are interchangeable and he was entitled to bill as a co-surgeon. Absent proof to the contrary, the Court finds that Plaintiff was entitled to bill as a Co-Surgeon under the Fee Schedule.

With respect to Plaintiff utilizing the surgery CPT codes, the Court finds that Plaintiff successfully rebutted Defendant's testimony and Plaintiff was entitled to use these CPT codes as the procedures were not listed under the chiropractic fee schedule. When a charge for a reimbursable service has not been scheduled by the superintendent, then the provider shall establish a fee consistent with other fees for comparable procedures shown in such schedule subject to review by the insurer. Id; See also Studin v. Allstate Ins. Co., 152 Misc 2d 221 (NY Dist. Ct. 1991). Therefore, the Court finds that Plaintiff established that the procedures were properly billed pursuant to the Fee Schedule and Plaintiff is entitled to be reimbursed for the services performed.

Family Care Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51414(U) (Civ Ct City NY, NY County)

As MVAIC has submitted an affidavit swearing that plaintiff's assignor did not file a notice of intention to make a claim, police report or household affidavit, defendant's moving papers make a prima facie showing that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202[b]) and, thus, that he is not a "covered person" (Insurance Law § 5221[b][2]).[FN1] Plaintiff's first argument in opposition is that defendant may not raise this "issue" to "obviate the 30-day requirement which would frustrate the purpose and objective of the No-Fault Law" (aff. in opp., para. 4).Plaintiff is incorrect.

In Hospital for Joint Diseases v Travelers Property Cas. Ins. Co., 9 NY3d 312, 849 NYS2d 473 (2007), the Court of Appeals recognized "a narrow exception to this preclusion remedy for situations where an insurance company raises a defense of lack of coverage (citation omitted). In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed' (citation omitted)".The Appellate Division, First Department recently held that, like insurers raising lack of coverage, MVAIC may raise the issue of lack of qualification at any time, and this issue is not subject to the thirty-day preclusion rule. MVAIC v Interboro Medical Care & Diagnostic PC, 73 AD23d 667, 902 NYS2d 45 (1st Dept 2010). [*3]Plaintiff's second argument in opposition is that defendant improperly sent verification requests to plaintiff and its attorneys, rather than to plaintiff's assignor Mr. Shalina. This argument ignores the documents submitted on the motion. Plaintiff's NF-3 lists only "N/A, N/A, NY 11235" as Mr. Shalina's address. As defendant claims there was no record of Mr. Shalina in its files, it would have been impossible for defendant to send anything to Mr. Shalina without having been given his address by plaintiff.

In this case, plaintiff apparently rendered services to "Mr. Shalina" (assuming that was his real name) on five separate occasions without ever obtaining any identification or proof of address. Perhaps because plaintiff had no other place to send the bill, it sent the bill to MVAIC. Because plaintiff's assignor, Mr. Shalina, never qualified for benefits from MVAIC, his assignee, plaintiff, who stands in his shoes, is not entitled to benefits from defendant either.

The bold is mine. Nevermind, no bold.

One more thing.  Roy Mura posted about a new circular letter re: cancellation for lack of payment.