March 16, 2015

East Gun Hill Med., P.C. v MVAIC (2015 NY Slip Op 50398(U))

Headnote

MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought. Under Insurance Law § 5208 (a) and (c), that failure meant the assignor was not a covered person within Insurance Law § 5221 (b) (2). A condition precedent to the provider's right to seek no-fault payment from MVAIC was therefore unsatisfied. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion and granted MVAIC's cross motion dismissing the complaint; it reached no other issue.

Reported in New York Official Reports at East Gun Hill Med., P.C. v MVAIC (2015 NY Slip Op 50398(U))

[*1]
East Gun Hill Med., P.C. v MVAIC
2015 NY Slip Op 50398(U) [47 Misc 3d 129(A)]
Decided on March 16, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2448 Q C

East Gun Hill Medical, P.C. as Assignee of DENNIS CAMPANIELLO, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 6, 2012, deemed from a judgment of the same court entered September 13, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 6, 2012 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 $3,458.73.

ORDERED that the judgment is reversed, with $30 costs, the order entered July 6, 2012 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 July 6, 2012, 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, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Since defendant 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” (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 (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 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 & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered July 6, 2012 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: March 16, 2015

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