Howard M. Rombon, Ph.D, P.C. v MVAIC, 2008 NY Slip Op 52128(U) (App. Term, 2nd)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved, inter alia, for summary judgment, arguing, that plaintiff’s assignor was not a qualified person because she did not provide MVAIC with proof that she was a resident of the State of New York. The court granted plaintiff’s motion for summary judgment and denied MVAIC’s cross motion. This appeal by MVAIC ensued.
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 plaintiff’s assignor is a “qualified person” and, thus, whether she 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]). We note that MVAIC’s failure to establish that it timely denied plaintiff’s claims is of no consequence since an assertion [*2]that there is a lack of coverage may always be raised (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary.
Avanessov v State-Wide Ins. Co., 2008 NY Slip Op 52131(U) (App. Term, 2nd)
The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an “Affirmation in Support.” The only document submitted in support of the petition was one which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he “states as follows,” which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).
In view of the foregoing, the petition to vacate the master arbitrator’s award should have [*2]been denied. Furthermore, upon denying the petition, the court is required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). While we do not reach the remaining contentions, we note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).