Civil Court Of The City Of New York, Kings County
February 23, 2009
KIPOR MEDICINE P.C. A/A/O MICHELINE POLYNICE, PLAINTIFF,
The opinion of the court was delivered by: Noach Dear, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiff, Kipor Medicine, P.C., commenced this action to recover assigned first-party no-fault benefits in the amount of $1,346.37, for psychotherapy services that it provided to its assignor, Micheline Polynice from May 15, 2001 to August 14, 2001.
The trial of the action took place on December 10, 2008. At that time, the parties agreed to a trial on stipulated facts. They stipulated on October 7, 2008 that the underlying claim for no-fault benefits was submitted to and received by defendant, Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) and that the claim was neither timely paid nor timely denied. The parties further stipulated the plaintiff did not submit any proof during the claims process, or at the time of trial, that its assignor was a New York State resident. The parties agreed that the only question to be resolved by the trial court is whether plaintiff was required to establish that its assignor was a New York State resident as part of its prima facie case.
This Court answers the question in the negative.
It is a fundamental precept of the No-Fault Law that unless an insurer pays or denies a claim for first-party no-fault benefits within thirty (30) days of its receipt, it will be precluded from raising most defenses to the claim (Insurance Law § 5106[a]; 11 NYCRR 65-3.8[c]; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 282 ; Fair Price Medical Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 563 ). An offshoot of this rule is that to establish a prima facie case in an action to recover no-fault benefits, a health care provider need only prove that it submitted a claim for benefits, setting forth the fact and the amount of the loss sustained, and that the claim was neither paid or denied within 30 days of its receipt (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). Furthermore, the prima facie burden against MVAIC is the same as against any other insurer (see Maple Medical Acupuncture, P.C. v. MVAIC, 15 Misc 3d 1124(A); 2007 NY Slip Op. 50827(U) [Nassau Dist Ct]; see also Englinton Medical, P.C. v. MVAIC, 14 Misc 3d 135(A); 2007 NY Slip Op. 50164(U) [App Term, 2d & 11th Jud Dists]).
Defendant is correct that non-New York State residents may not fall within the definition of "qualified person", which the MVAIC statute defines, inter alia, as "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..." (Insurance Law § 5202[b] ).*fn1 However, the 30-day period within which MVAIC may timely deny a claim begins to run upon receipt of the claim and does not depend on whether a medical provider has established that its assignor is a "qualified person" within the meaning of Insurance Law § 5202 (b) or whether MVAIC has made such a determination (see New York Hosp. Med. Ctr. of Queens v. Motor Veh. Acc. Indem. Corp.,12 AD3d 429 [2nd Dept 2004]; see also Englinton Medical, P.C. v. MVAIC,14 Misc 3d 135 [A]; 2007 NY Slip Op. 50164[U]). Since a plaintiff can trigger MVAIC's obligation to pay without showing the underlying assignor is a "qualified person," it follows that it can prove its prima facie case in the same manner. In other words, the 30 day preclusion rule, as well as, all the case law that has developed concerning the elements of a provider's prima facie case fully apply to MVAIC regardless of whether a determination has been made that a provider's assignee is a "qualified person."
This is not to say that MVAIC's failure to deny a claim within 30 days precludes it from defending a claim on the ground that the injured person is not a "qualified person." It is well settled that the defense of lack of coverage survives an insurer's untimely denial of a claim (see Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195, 200 ). The defense that a person seeking first-party no-fault benefits from MVAIC is not a "qualified person" within the meaning of Insurance Law § 5202 (b) is a coverage defense (see Howard M. Rombon, Ph.d, P.C. v. MVAIC, 2008 NY Slip Op. 52128(U) [App Term, 2nd & 11th Jud Dists]) upon which MVAIC would have the burden of proof (Matter of Country Wide Insurance Co., 201 AD2d 368 (1st Dept 1994]). Here, no evidence was submitted demonstrating that plaintiff's assignor was not a "qualified person."
Accordingly, it is hereby
ORDERED that judgment be entered in favor of the plaintiff in the amount of $1,346.37, together with interest and attorneys fees as provided for by the No-Fault statutes and regulations, plus costs and disbursements.
This constitutes the decision and order of the court.