Englington Med., P.C. v Motor Veh. Acc. Indem. Corp.,2011 NY Slip Op 00176 (App. Term 2d Dept. 2011)
“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.”
“Moreover, in light of our determination, this Court need not address this contention because there can be no coverage unless and until it is determined at trial that Cruz is a qualified person.”
What I think is interesting here is that the Appellate Division, Second Department, has held that at trial, a Plaintiff must prove that the assignor is a qualified person. Note how the Appellate Division, First Department has held contra.
3 Responses
Your beef with MANIAC is based upon a fundamental misconception J.T. You believe that MANIAC was designed to provide benefits to the victims of the uninsured and underinsured. MANIAC is really only there to provide “peace of mind.”
A few points on this:
1. The App. Div. doesn’t actually say that the plaintiff has this burden. If there is a presumption of the assignor’s “qualified person” status that attaches to the provider’s claim forms (as there is with respect to coverage against an insurer), then it would be MVAIC’s burden at trial to prove that the assignor isn’t qualified.
2. This is dicta, and I wouldn’t be surprised to see them back away from it when the issue is actually before them.
3. The App. Div, 2d Dep’t has previously held that a no-fault plaintiff’s burden against MVAIC is the same as the one against an insurer: “by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits was overdue.” New York Hosp. Medical Center of Queens v. Motor Vehicle Acc. Indemnification Corp., 12 A.D.3d 429 (2d Dep’t, 2004). The App. Term, 2d Dep’t has also held this. See A.B. Medical Services PLLC v. Motor Vehicle Acc. Indemnification Corp., 6 Misc.3d 131(A) (App. Term, 2d Dep’t, 2005)
When is the Appellate Division Second Department going to revisit this issue? How many times do these types of cases make it to the Appellate Division? More importantly, this was an Opinion and Order, not a Decision and Order. A lower court will cling to Justice Leventhal’s words a lot more than they would to an unsigned Decision and Order. And the Appellate Term, Second Department has no problem protecting MVAIC. I see disaster for the Plaintiff’s when proceeding against MVAIC in these courts.