First Am. Alliance, Inc. v. MVAIC

First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U)) [*1] First Am. Alliance, Inc. v MVAIC 2021 NY Slip Op 50447(U) [71 Misc 3d 138(A)] Decided on May 14, 2021 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on May 14, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2019-836 K C First American Alliance, Inc., as Assignee of Sylvia Jupiter, Appellant, against MVAIC, Respondent. Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered March 25, 2019. The order granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground of lack of medical necessity. Contrary to MVAIC's contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff's assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As a result, MVAIC's motion seeking summary judgment dismissing the complaint should have been denied as MVAIC failed to establish that it is not precluded from interposing its defense of lack of medical necessity (see Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: May 14, 2021