August 2, 2019

Moon Rehab, P.T., P.C. v MVAIC (2019 NY Slip Op 51252(U))

Headnote

MVAIC established that the assignor failed to file a timely notice to make claim, leaving a condition precedent to benefits unsatisfied. Under Insurance Law § 5208 (a) and Insurance Law § 5221 (b) (2), the assignor was not a covered person. The provider failed to establish that leave to file a late notice had been obtained under Insurance Law § 5208 (c), or otherwise raise a triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's motion for summary judgment dismissing the complaint; it reached no other issue.

Reported in New York Official Reports at Moon Rehab, P.T., P.C. v MVAIC (2019 NY Slip Op 51252(U))

[*1]
Moon Rehab, P.T., P.C. v MVAIC
2019 NY Slip Op 51252(U) [64 Misc 3d 140(A)]
Decided on August 2, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-574 K C

Moon Rehab, P.T., P.C., as Assignee of Cruz Adrian, Respondent,

against

MVAIC, Appellant.


Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered September 16, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In opposition to MVAIC’s motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a [*2]triable issue of fact (see Insurance Law § 5208 [c]). In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019

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