RAZ Acupuncture, P.C. v MVAIC, 2009 NY Slip Op 52362(U) (App. Term, 2nd, 2009)
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor did not provide MVAIC with proof that he was a resident of the State of New York. Plaintiff cross-moved for summary judgment. By order entered September 7, 2007, defendant’s motion was denied and plaintiff’s cross motion was granted. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
MVAIC’s moving papers made 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]; see 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]). We note that the defense of lack of coverage is not subject to preclusion (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]; 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]; 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 [*2]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. Accordingly, MVAIC’s motion for summary judgment dismissing the complaint should have been granted and plaintiff’s cross motion for summary judgment should have been denied.
A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 2009 NY Slip Op 52363(U) (App. Term, 2nd, 2009)
In this action by providers to recover assigned first-party no-fault benefits, the Civil Court granted a motion by defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) to vacate the default judgment entered against it. However, contrary to MVAIC’s contention, Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted. MVAIC’s initial moving papers made no attempt to establish that MVAIC possessed a meritorious defense, and its belated attempt to establish a meritorious defense in its reply papers should have been disregarded (Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 355 [2005]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).Accordingly, the order is reversed and MVAIC’s motion to vacate the default judgment is [*2]denied.
Let me guess. MVAIC responded to discovery demands with a motion for summary judgment, and successfully secreted the Notice of Intention from the plaintiff and the Court.