August 24, 2012

Jamhil Med., P.C. v MVAIC (2012 NY Slip Op 51650(U))

Headnote

A provider sued MVAIC to recover assigned first-party no-fault benefits. MVAIC showed that no timely sworn notice of claim had been filed and that leave to file a late notice had not been sought under Insurance Law 5208. The Appellate Term, Second Department, held that the assignor was therefore not a covered person under Insurance Law 5221(b)(2). It concluded that a condition precedent to applying for no-fault benefits from MVAIC had not been satisfied, so the complaint was dismissed.

Reported in New York Official Reports at Jamhil Med., P.C. v MVAIC (2012 NY Slip Op 51650(U))

[*1]
Jamhil Med., P.C. v MVAIC
2012 NY Slip Op 51650(U) [36 Misc 3d 149(A)]
Decided on August 24, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2009-2379 K C.

Jamhil Medical, P.C. as Assignee of NAZIR MOHAMMED, Respondent, —

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 1, 2009. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Since MVAIC established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance Law § 5221 [b] [2]). Consequently, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from MVAIC has not been satisfied (Five Boro Psychological Servs., P.C. v MVAIC, 35 Misc 3d 133[A], 2012 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; M.N.M. Med. Health Care, [*2]P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is reversed and MVAIC’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 24, 2012