DECISION/ORDER After a bench trial was held in this matter on April 11, 2019, this Court finds as follows: The plaintiff, Metro 8 Medical Equipment Inc. A/A/O Jose Rodriguez, and the defendant, MVAIC, stipulated to their prima facie case. The parties agreed that the main issue for trial is whether the defendant received a notarized notice of claim pursuant to Judge Anthony Cannataro’s Decision/Order dated June 21, 2016. Judge Cannataro’s Decision reads as follows: “Plaintiff raised a triable issue of fact based on defendant’s requests for verifications which indicated that MVAIC may have received a notarized notice of claim.” The parties stipulated to the following documents being entered into evidence as Court’s Exhibit 1: a) letters sent by MVAIC to plaintiff, claimant and/or claimant’s attorney; b) unnotarized notice of intention to make claim received by MVAIC; c) copy of police accident report; d) copy of household affidavit; e) affidavit of no insurance from the claimant; f) letter from the individual who resided with the claimant to establish that claimant was a New York State resident at the time of the accident; g) and seven letters from MVAIC to the plaintiff. In evidence as Plaintiff’s Exhibit 1 is Judge Anthony Cannataro’s Decision/Order dated June 21, 2016, which granted defendant’s summary judgment to the extent that defendant has established his prima facie case and denied plaintiff’s cross-motion for sanctions. At trial, the plaintiff did not present any witnesses, and rested after entering Plaintiff’s Exhibit 1 into evidence. At trial, the defendant called as a witness, Tarik Pollins, who testified that he was employed with MVAIC since April 9, 2009 as a Qualifications Examiner and that he has been on this case for 2 to 3 years. In addition, he testified that his duties included verifying that individuals involved in automobile accidents qualify for insurance. Mr. Pollins testified that his training included 90 days of reading “the article.” Mr. Pollins also testified that the documents required to be a qualified person under the New York Insurance Law are a) notice of intent to make a claim; b) signed and notarized claim form; c) household affidavit, signed and notarized; d) copy of a police report or proof the accident occurred; e) proof of residency document; and f) proof of lack of insurance coverage, which means a denial letter from an unknown insurance carrier. Mr. Pollins also testified about the procedures for when a new claim is received by MVAIC and stated: “when a claim is received we have five business days to issue a letter to the injured party or if he’s being represented by an attorney, to inform [the attorney] what we will need from the injured party to be deemed a qualified person.” Mr. Pollins also testified about the specific procedures in place when MVAIC receives medical bills from a claimant. Mr. Pollins stated: “we send out letters to that medical provider to let them know why the bill hasn’t been paid currently.” Mr. Pollins further testified that if MVAIC does not receive all the required documents from the claimant or the claimant’s attorney, MVAIC would either close the file for lack of cooperation after 120 days or MVAIC will send out qualifying letters to let them know what documents are outstanding regarding their claim. As to the claimant and plaintiff’s assignor, Jose Rodriguez, Mr. Pollins testified that when a new claim is received by MVAIC, a physical file is created, and that file is electronically maintained. Mr. Pollins testified that Mr. Rodriguez did not qualify for coverage with MVAIC under Article 52 for two reasons. First, the notice of intent filed by the claimant, Mr. Rodriguez, to make a claim was not signed and notarized. Mr. Pollins testified that MVAIC does not accept unsigned and unnotarized affidavits. Second, based on the police report, Mr. Rodriguez was listed as a passenger in “vehicle number two” and the report lists the insurance company, QBE, as the primary carrier for this loss. The police report also lists the QBE insurance policy number. Mr. Pollins further testified that the letters denying the claim were sent to the claimant and/or his attorneys to advise them of the reasons why Mr. Rodriguez did not qualify for MVAIC insurance. Mr. Pollins also testified that they generated the letters to the plaintiff, Metro 8 Medical Equipment. Mr. Pollins testified that MVAIC received a bill from the plaintiff, Metro 8 Medical Equipment (“Metro 8″), for January 20, 2011, the date of service, in the amount of $2,326.35. Mr. Pollins testified based on the Court’s Exhibit 1 (the letters regarding the bill in dispute), that the claimant, Mr. Rodriguez, did not qualify for insurance coverage when the plaintiff’s bill was received because Mr. Rodriguez lacked proof of insurance for the vehicle. Mr. Pollins also testified that they informed Mr. Rodriguez that the notice of intention of the claim was incomplete because the document was not signed and notarized. When asked whether MVAIC is under a business duty to maintain a copy of that denial letter in the claim file, Mr. Pollins responded “Yes, we are.” Mr. Pollins also testified that in the Court’s Exhibit 1, there is a copy of MVAIC’s claim file for Mr. Rodriguez. Mr. Pollins testified that MVAIC did not receive any other notice of claim on behalf of Mr. Rodriguez. Further, Mr. Pollins testified that if MVAIC had received another notice of claim, it would be in their ordinary course of business to maintain a copy of that document. Specifically, he stated that “we would have to update the incident tab in our system, which would change this from outstanding to received.” Mr. Pollins further testified that MVAIC received a notice of intention from the plaintiff to make a claim for an additional bill, and in a response letter dated March 15, 2011, MVAIC acknowledged receipt of the claim, but the other box indicates to the provider that the notice is incomplete because it was not signed and notarized. Mr. Pollins also testified that the letters sent to plaintiff, the claimant and the attorneys also indicated that MVAIC required proof of insurance or lack thereof for the vehicle involved in the accident, and no proof of insurance was ever received by MVAIC. Mr. Pollins further testified that proof of insurance alone is not enough to qualify a person, as MVAIC needs both the notarized intention to make a claim and proof his insurance status. On cross-examination, Mr. Pollins testified that the household affidavit, the affidavit of no insurance and a letter establishing residency for the patient were notarized. When questioned about whether the letters sent were contradictory because on one part of the MVAIC response letter, it says notice of intention to make a claim signed and notarized and then further down the page it states the document was not notarized, Mr. Pollins responded, “not to me, it allows us to explain to you why the notice of intent is incomplete.” On re-direct examination, Mr. Pollins testified that if an applicant needs clarification, the letters sent by MVAIC have a phone number to contact them for more information. Mr. Pollins further testified that they receive telephone calls all the time and that the MVAIC claim file for Mr. Rodriguez indicates that they did not receive a telephone call about the alleged contradiction regarding the notice of intention to make a claim not being notarized and incomplete. Mr. Pollins also testified that although he would not be the one to receive the notarized notice of intent, that it would be the ordinary course of business, that any qualifications examiner handling the file would be tasked with the responsibility of documenting receipt of documents once they are received. Based upon the testimony and evidence submitted on the record, this Court finds defendant’s witness, Mr. Pollins, credible in his testimony regarding the procedure of MVAIC. Specifically, Mr. Pollins credibly testified as to MVAIC’s policy in sending letters to all parties informing them if documents are needed, missing, or if any part of the document is lacking in some respect. The court also found Mr. Pollins’ testimony credible when he stated that MVAIC did not receive a notarized notice of intention claim, but only received a notarized household affidavit, a notarized affidavit of no insurance and a notarized letter establishing residency for the patient. Further, the court found Mr. Pollins credible when he testified that it is MVAIC’s procedure and ordinary course of business to update a claim file when documents are received. The court found Mr. Pollins credible when he testified that the claim file in this case indicated that there had been no communication between the parties regarding the alleged contradiction of the notice of intention being unnotarized and incomplete. The relevant statute at hand, Insurance Law §5208 delineates the standard of qualified persons who can file a notice of claim and may receive insurance coverage for motor vehicle accidents caused by financially irresponsible motorists. “The filing of a timely affidavit providing MVAIC with notice of intention to make a claim is a condition precedent to the right to apply for payment from MVAIC.” See, Olmecs Med. Supplies, Inc. v. MVAIC, 38 Misc.3d 140(A) (2013); see also, Insurance Law §5208(a). “When these requirements have not been met, the plaintiff’s assignor is not a qualified person and thus, not a covered person.” See, MB Advanced Equipment, Inc. v. MVAIC, 48 Misc. 3d 1049, 1052 (2015). The record is clear based on the testimony set forth by the defendant’s witness and evidence submitted that the defendant, MVAIC, did not receive a notarized Notice of Intention to make a claim from the plaintiff’s assignor, and as such Mr. Rodriguez is not a qualified person and thus, is not entitled to recover no-fault benefits from MVAIC. Based on the above, it is therefore ORDERED that the plaintiff’s complaint seeking reimbursement for medical services from the defendant is hereby DISMISSED in its entirety. Accordingly, the clerk shall dismiss the instant action. This shall constitute the decision and order of the Court. Copies to be mailed to counsel. Dated: August 16, 2019 New York, New York
