Reported in New York Official Reports at Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50565(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Independent Ins. Co., Appellant, and Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants.
Tam Medical Supply Corp., as Assignee of Destin, Woldine, Respondent,
against
American Independent Ins. Co., Appellant, and Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants.
Freiberg, Peck & Kang, LLP (Yilo Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeals from orders of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), each entered November 20, 2018. The first order (appeal No. 2019-1567 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2022-138 K C), insofar as appealed from, denied the branches of a motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance.
ORDERED that the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order being appealed under appeal number 2019-1567 K C is reversed, with $30 costs, and the motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. is granted; and it is further,
ORDERED that the order being appealed under appeal number 2022-138 K C, insofar as appealed from, is reversed, with $30 costs, and the branches of the motion seeking to dismiss so [*2]much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.
In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant American Independent Ins. Co. moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Defendants American Independent Insurance Companies, Inc., Good2Go Auto Insurance and Omni Indemnity Company moved, in a single motion, to dismiss so much of the complaint as was asserted against them on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff opposed both motions and cross-moved for summary judgment. Defendant American Independent Ins. Co. appeals (appeal No. 2019-1567 K C) from an order of the Civil Court entered November 20, 2018 denying the motion to dismiss the complaint insofar as asserted against it. Defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance appeal (appeal No. 2022-138 K C) from so much of a separate order of the Civil Court, also entered November 20, 2018, as denied the branches of the motion seeking to dismiss so much of the complaint as was asserted against them.
For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order being appealed under appeal number 2019-1567 K C and the order being appealed under appeal number 2022-138 K C, insofar as appealed from, are reversed. The first motion, by defendant American Independent Ins. Co., is granted, and the branches of the second motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U))
| MSB Physical Therapy, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50564(U) [75 Misc 3d 136(A)] |
| Decided on June 10, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1349 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment, defendant did not need to demonstrate, as part of its prima facie case, that the first examination under oath scheduling letter had been sent to plaintiff’s assignor within 15 days of defendant’s receipt of either the NF-2 or a claim received from another provider (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; see also State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454 [2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Reported in New York Official Reports at Lantsman Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50568(U))
[*1]| Lantsman Acupuncture, P.C. v MVAIC |
| 2022 NY Slip Op 50568(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1765 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Alexis Levine of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 17, 2019. 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 denying MVAIC’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]. 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” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citations omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). MVAIC established that it had not received such an affidavit. In opposition, plaintiff did not establish that such an affidavit had been submitted to MVAIC.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief ClerkDecision Date: June 10, 2022Sure Way NY, Inc. v MVAIC (2022 NY Slip Op 50573(U))
Reported in New York Official Reports at Sure Way NY, Inc. v MVAIC (2022 NY Slip Op 50573(U))
[*1]| Sure Way NY, Inc. v MVAIC |
| 2022 NY Slip Op 50573(U) [75 Misc 3d 137(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-83 K C
against
MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall (Frank D’Esposito of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
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 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole appellate contention with respect to MVAIC’s motion for summary judgment dismissing the complaint, the affidavit of MVAIC’s claim representative was sufficient to establish, prima facie, that MVAIC had timely denied plaintiff’s claims (see Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; cf. Exclusive Physical Therapy, P.C. v MVAIC, 35 Misc 3d 139[A], 2012 NY Slip Op 50862[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff failed to raise a triable issue of fact.
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022Jamaica Wellness Med., P.C. v MVAIC (2022 NY Slip Op 50574(U))
Reported in New York Official Reports at Jamaica Wellness Med., P.C. v MVAIC (2022 NY Slip Op 50574(U))
[*1]| Jamaica Wellness Med., P.C. v MVAIC |
| 2022 NY Slip Op 50574(U) [75 Misc 3d 138(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-95 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Frank D’Esposito of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 10, 2015 and January 12, 2016.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
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 the branches of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 10, 2015 and January 12, 2016.
Contrary to MVAIC’s contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff’s assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As a result, with respect to the branches of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 10, 2015 and January 12, 2016, MVAIC failed to establish that it is not precluded from interposing its defense of lack of medical necessity (see Active Care Med. Supply Corp. v [*2]MVAIC, 2019 NY Slip Op 52045[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022Longevity Med. Supply, Inc. v Travelers Indem. Co. (2022 NY Slip Op 50582(U))
Reported in New York Official Reports at Longevity Med. Supply, Inc. v Travelers Indem. Co. (2022 NY Slip Op 50582(U))
[*1]| Longevity Med. Supply, Inc. v Travelers Indem. Co. |
| 2022 NY Slip Op 50582(U) [75 Misc 3d 138(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-453 K C
against
Travelers Indemnity Co., Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Offices of Tina Newsome-Lee (Kalman Miller and William Angstreich of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated February 4, 2020. The order held defendant’s motion for summary judgment dismissing the complaint and plaintiff’s cross motion for summary judgment in abeyance pending an application by plaintiff to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits and plaintiff cross- moved for summary judgment. The Civil Court held the motions in abeyance pending an application by plaintiff to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.
The order appealed from did not decide defendant’s or plaintiff’s motions but instead held the motions in abeyance pending plaintiff seeking a determination from the Workers’ Compensation Board as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and whether, therefore, workers’ compensation benefits might be available (see O’Rourke v Long, 41 NY2d 219, 225 [1976]). Thus, the order is not appealable as of right (see CCA 1702 [a] [2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305 [2006]; Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins., 58 Misc 3d 127[A], 2017 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]) and, under the circumstances, we decline to grant leave to appeal.
Accordingly, the appeal is dismissed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U))
Reported in New York Official Reports at SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U))
[*1]| SVP Med Supply, Inc. (B) v GEICO |
| 2022 NY Slip Op 50585(U) [75 Misc 3d 139(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-641 K C
against
GEICO, Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel) for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 25, 2019. 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d 127[A], 2019 NY Slip Op 51505[U] [App Term, 1st Dept 2019]). As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.
Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022Metro Health Prods., Inc. v MVAIC (2022 NY Slip Op 50588(U))
Reported in New York Official Reports at Metro Health Prods., Inc. v MVAIC (2022 NY Slip Op 50588(U))
[*1]| Metro Health Prods., Inc. v MVAIC |
| 2022 NY Slip Op 50588(U) [75 Misc 3d 139(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-775 K C
against
MVAIC, Appellant.
Marshall & Marshall (Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 22, 2019. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,451.17.
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.
After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff against defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) in the principal sum of $3,451.17.
At the outset of the trial, it was noted that, by a prior order, the issue for trial would be limited (see CPLR 3212 [g]) to whether the applicant had reasonable justification for failing to timely submit a notice of claim (see Insurance Law § 5208 [b] [1]) or whether the applicant had obtained leave of court to permit it to be filed late (see Insurance Law § 5208 [b] [2]). Plaintiff called no witnesses and made no attempt to establish either a reasonable justification for failing to timely submit a notice of claim or that the applicant had obtained leave to of court to permit it to be filed late.
“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]. 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” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d [*2]142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that it was not reasonably possible to file a notice of claim within a timely manner (see Insurance Law § 5208 [b] [1]) or that leave of court had been obtained to permit the notice of claim to be filed late (see Insurance Law § 5208 [b] [2]), plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.
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.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022ZZ Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50589(U))
Reported in New York Official Reports at ZZ Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50589(U))
[*1]| ZZ Acupuncture, P.C. v MVAIC |
| 2022 NY Slip Op 50589(U) [75 Misc 3d 139(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-896 K C
against
MVAIC, Appellant.
Marshall & Marshall (Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated September 14, 2020. 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 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 and granted plaintiff’s cross motion for summary judgment.
“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]. 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” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As MVAIC established that it had not received such an affidavit, MVAIC’s motion for summary judgment dismissing the complaint should have been granted. We reach no other issue.
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.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022Milky Way Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50590(U))
Reported in New York Official Reports at Milky Way Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50590(U))
[*1]| Milky Way Acupuncture, P.C. v MVAIC |
| 2022 NY Slip Op 50590(U) [75 Misc 3d 139(A)] |
| Decided on June 10, 2022 |
| 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 June 10, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-966 K C
against
MVAIC, Appellant.
Marshall & Marshall (Frank D’Esposito and Alexis N. Levine of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated September 15, 2020. 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.
MVAIC’s motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness (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]). In light of the foregoing, we reach no other issue.
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.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022