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Velen Medical Supply As Assignee of Chantal G. Robinson, Appellant v. Mvaic

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


October 27, 2011

VELEN MEDICAL SUPPLY AS ASSIGNEE OF CHANTAL G. ROBINSON, APPELLANT,
v.
MVAIC, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (In-grid Joseph, J.), entered March 29, 2010.

Velen Med. Supply v MVAIC

Decided on October 27, 2011

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

"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)" (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, in order for someone who was injured in a hit-and-run accident, such as plaintiff's assignor herein, to be a "covered person" and obtain no-fault benefits, the person must have complied with all the applicable requirements of Insurance Law article 52, including, but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance Law § 5202 [a] [2] [A]) unless a showing is made that it was "not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible" (Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]).

In the instant case, MVAIC's claims examiner stated in his affidavit that despite repeated requests for proof that plaintiff's assignor had filed an accident report as required by Insurance Law § 5202 (a) (2) (A), plaintiff's assignor had never provided such proof. Plaintiff's opposing papers are devoid of any indication that plaintiff's assignor complied with the reporting requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it "was not reasonably possible to make such a report" (Insurance Law § 5208 [a] [2] [B]). Accordingly, the order is affirmed (see Insurance Law § 5221 [b] [2]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: October 27, 2011

20111027

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