Reported in New York Official Reports at Medcare Supply, Inc. v MVAIC (2016 NY Slip Op 51414(U))
[*1]| Medcare Supply, Inc. v MVAIC |
| 2016 NY Slip Op 51414(U) [53 Misc 3d 133(A)] |
| Decided on September 27, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-704 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 18, 2013, deemed from a judgment of the same court entered January 23, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 18, 2013 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,346.76.
ORDERED that the judgment is reversed, with $30 costs, the order entered December 18, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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, entered December 18, 2013, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, pursuant to the December 18, 2013 order, awarding plaintiff the principal sum of $1,346.76, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
Accordingly, the judgment is reversed, the order entered December 18, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Natural Therapy Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51416(U))
Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51416(U))
[*1]| Natural Therapy Acupuncture, P.C. v MVAIC |
| 2016 NY Slip Op 51416(U) [53 Misc 3d 133(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-768 Q C
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 18, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted the cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground that the action is barred by the statute of limitations.
A defendant moving to dismiss a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In the case at bar, MVAIC established that the action had been commenced after the expiration of the three-year statute of limitations. In opposition, plaintiff failed to raise a triable issue of fact as to the timeliness of the action (see Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Pierre Jean Renelique, MD, P.C. v Farmington Cas. Co. (2016 NY Slip Op 51420(U))
Reported in New York Official Reports at Pierre Jean Renelique, MD, P.C. v Farmington Cas. Co. (2016 NY Slip Op 51420(U))
[*1]| Pierre Jean Renelique, MD, P.C. v Farmington Cas. Co. |
| 2016 NY Slip Op 51420(U) [53 Misc 3d 134(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-790 Q C
against
Farmington Casualty Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 12, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 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 defendant’s motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff’s assignor for independent medical examinations had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Village Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51421(U))
Reported in New York Official Reports at Village Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51421(U))
[*1]| Village Med. Supply, Inc. v MVAIC |
| 2016 NY Slip Op 51421(U) [53 Misc 3d 134(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-809 K C
against
MVAIC, Appellant.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), dated April 5, 2013, and from a judgment of the same court entered December 3, 2013. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $698.26.
ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); and it is further,
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
At a nonjury trial in this action to recover assigned first-party no-fault benefits, the parties agreed that the sole issue for trial was whether plaintiff’s assignor was a “qualified person,” and, thus, whether he was eligible to recover no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Following the trial, the Civil Court awarded plaintiff judgment in the principal sum of $698.26.
Proof that a claimant is a resident of the State of New York is a condition precedent to the claimant being a “qualified person” (Insurance Law § 5202 [b]) and, thus, potentially eligible to be deemed to be a “covered person” who would be entitled to recover no-fault benefits from MVAIC (Insurance Law § 5221 [b] [2]). Plaintiff did not establish that MVAIC had been provided with proof that the assignor had been a resident of the State of New York on the date of the accident.
In addition, “[t]he filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]’ (see Insurance Law § 5208 [a] [1], [3]). Compliance with the statutory requirement of timely filing a notice of claim must also be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, (2d Dept,) 2d & 11th Jud Dists (2005)])” (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also 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 [*2]2007]). Plaintiff did not establish that such an affidavit had been submitted to MVAIC.
For the foregoing reasons, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]; SK Prime Med. Supply, Inc. v MVAIC, 49 Misc 3d 145[A], 2015 NY Slip Op 51663[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U))
Reported in New York Official Reports at Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U))
[*1]| Compas Med., P.C. v Travelers Insurance Company |
| 2016 NY Slip Op 51424(U) [53 Misc 3d 134(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-847 Q C
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through eighth causes of action on the ground that plaintiff had failed to appear for examinations under oath are denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the seventh cause of action on the ground of a lack of medical necessity.
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 defendant’s motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s only contentions as to the first cause of action, defendant’s submissions were sufficient to give rise to a presumption that the initial and follow-up verification requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant had not received the requested verification and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Consequently, plaintiff has shown no basis to disturb the Civil Court’s order as to that cause of action.
As to the second through eighth causes of action, plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff for examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for EUOs should have been denied.
As to the seventh cause of action, defendant asserted a lack of medical necessity defense in addition to its defense based on plaintiff’s failure to appear for EUOs. Because the Civil Court granted the branch of defendant’s motion seeking to dismiss that cause of action on the ground that plaintiff had failed to appear for EUOs, it did not decide the branch of defendant’s motion [*2]seeking to dismiss that cause of action on the ground of a lack of medical necessity. Therefore, the matter is remitted for a determination of that branch of defendant’s motion.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through eighth causes of action on the ground that plaintiff had failed to appear for EUOs are denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the seventh cause of action on the ground of a lack of medical necessity.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016BES Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51427(U))
Reported in New York Official Reports at BES Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51427(U))
[*1]| BES Med. Supply, Inc. v MVAIC |
| 2016 NY Slip Op 51427(U) [53 Misc 3d 134(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-888 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered September 13, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order 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 an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had struck the vehicle in which the assignor was a passenger, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Colin Clarke, M.D., P.C. v MVAIC (2016 NY Slip Op 51432(U))
Reported in New York Official Reports at Colin Clarke, M.D., P.C. v MVAIC (2016 NY Slip Op 51432(U))
[*1]| Colin Clarke, M.D., P.C. v MVAIC |
| 2016 NY Slip Op 51432(U) [53 Misc 3d 135(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1012 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted; and it is further,
ORDERED that the Clerk of the Civil Court, or his or her designee, shall amend the caption to reflect that the only assignor named in the caption is “Doreen Glover.”
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.
“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]’ (see Insurance Law § 5208 [a] [1], [3]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, (2d Dept,) 2d & 11th Jud Dists (2005)])” (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also 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]). Defendant established that it had not received such an affidavit.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
As the record indicates that the parties previously stipulated that the sole assignor for which plaintiff seeks to recover in this action is “Doreen Glover,” the Clerk of the Civil Court, or his or her designee, is directed to amend the caption to reflect that the only assignor named in the caption is “Doreen Glover” (see CPLR 5019 [a]), and we have amended the caption of the appeal accordingly.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Actual Chiropractic, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51435(U))
Reported in New York Official Reports at Actual Chiropractic, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51435(U))
[*1]| Actual Chiropractic, P.C. v Mercury Cas. Co. |
| 2016 NY Slip Op 51435(U) [53 Misc 3d 135(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1226 K C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 29, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and granted plaintiff’s cross motion for summary judgment.
The proof submitted by defendant established that it had timely mailed both the EUO scheduling letters and the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). We note that, contrary to the conclusion of the Civil Court, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law” (Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016TAM Med. Supply Corp. v MVAIC (2016 NY Slip Op 51436(U))
Reported in New York Official Reports at TAM Med. Supply Corp. v MVAIC (2016 NY Slip Op 51436(U))
[*1]| TAM Med. Supply Corp. v MVAIC |
| 2016 NY Slip Op 51436(U) [53 Misc 3d 135(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1277 K C
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 17, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
MVAIC established that plaintiff had not timely filed an affidavit providing MVAIC with a notice of intention to file a claim. In opposition to MVAIC’s motion, plaintiff failed to raise a triable issue of fact by demonstrating that leave had been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]). Consequently, plaintiff’s assignor is not a “covered person” within the meaning of the statute (see Insurance Law § 5221 [b] [2]), and a condition precedent to the right to apply for payment of no-fault benefits from MVAIC has not been satisfied (Larisa Supplies, Inc. v MVAIC, 31 Misc 3d 129[A], 2011 NY Slip Op 50562[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 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]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016Artzel, Inc. v Mercury Cas. Co. (2016 NY Slip Op 51437(U))
Reported in New York Official Reports at Artzel, Inc. v Mercury Cas. Co. (2016 NY Slip Op 51437(U))
[*1]| Artzel, Inc. v Mercury Cas. Co. |
| 2016 NY Slip Op 51437(U) [53 Misc 3d 135(A)] |
| Decided on September 27, 2016 |
| 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 September 27, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1305 K C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 9, 2014. The order, insofar as appealed from, upon renewal, adhered to a prior determination made in an order of the same court entered July 10, 2013 denying defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order entered April 9, 2014, insofar as appealed from, is reversed, with $30 costs, and, upon renewal, 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, insofar as is relevant to this appeal, defendant moved for leave to renew its prior motion for summary judgment dismissing the complaint, which was based upon defendant’s non-receipt of the subject bill. Upon renewal, the Civil Court adhered to its prior determination made in an order entered July 10, 2013 denying the motion, finding that there was a triable issue of fact as to whether the bill had been received by defendant.
The proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form at issue in this action. In the absence of evidence of plaintiff’s submission of the claim form at issue, defendant was entitled to summary judgment dismissing the complaint (see Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co., Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).
Accordingly, the order, insofar as appealed from, is reversed, and, upon renewal, defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016