SML Acupuncture P.C. v MVAIC

[*1] SML Acupuncture P.C. v MVAIC 2017 NY Slip Op 50539(U) Decided on April 21, 2017 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
17-048

SML Acupuncture P.C., a/a/o Jasmine Dunham, Plaintiff-Appellant, -

against

MVAIC, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 13, 2015, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 13, 2015, affirmed, with $10 costs.

MVAIC's submissions in support of its motion for summary judgment established, prima facie, 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]), and, thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant had not been satisfied (see Shore Med. Diagnostic, P.C. v MVAIC, 41 Misc 3d 131[A], 2013 NY Slip Op 51749[U] [App Term, 2nd, 11th and 13th Jud Dists 2013]; Yklik, Inc. v MVAIC, 35 Misc 3d 145[A], 2012 NY Slip Op 51012[U] [App Term, 2nd, 11th and 13th Jud Dists 2012]). In opposition, plaintiff failed to raise any triable issue. MVAIC's failure to timely deny the claim does not preclude it from asserting a lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 21, 2017