Recitation, as Required By Cplr2219(A), Of The Papers Considered In The Review Of This Motion:Notice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Notice of Cross-Motion 3Affirmation in Opp. To Cross-Motion 4Reply Affirmation 5DECISION AND ORDER
*1 In this action by a provider to recover assigned first-party no-fault insurance benefits, defendant Motor Vehicle Accident Indemnification Corporation (“MVAIC”) moves for summary judgment dismissing the complaint, asserting as affirmative defenses: a) there is no coverage available for plaintiff’s assignor from MVAIC; and b) the applicant failed to exhaust all remedies against the known vehicle owner pursuant to Insurance Law, Article 52, section 5202(b). Plaintiff cross-moves for summary judgment. As the party seeking summary judgment, defendant has the burden of demonstrating its entitlement thereto as a matter of law by admissible evidence (Dalton v. Educational Testing Service, 294 A.D.2d 462, 463 [2d Dept., 2002]).Plaintiff contends that defendant denied plaintiff’s claim beyond 30 days following receipt of the claim, thereby rendering the denial untimely. In this action, however, defendant denied the claim based on lack of coverage, which does not fall within the purview of the 30 day requirement and may be raised at any time. The requirement that defendant denies the bills within 30 days of the receipt of the claim applies to denials that are based on lack of response to verification requests and not lack of coverage, which is not a precludable defense (Flatbush Chiropractic, P.C. v. Hereford Ins. Co., 49 Misc.3d 149(A) [App. Term, 2d Dept., 2015]; Howard M. Rombon, Ph.D., P.C. v. MVAIC, 21 Misc.3d 131(A) [App. Term, 2d Dept., 2008]).Defendant submits the sworn affidavit of Ron Johnson, who states that he is a Qualifications Examiner with defendant MVAIC. The affiant states that, since the applicant has coverage from the offending vehicle and failed to provide proof that she was uninsured, there is no coverage from MVAIC.The Court finds that the affidavit is sufficient to establish defendant’s prima facie case on its lack of coverage defense.
