3 Star Acupuncture, P.C. v MVAIC

[*1] 3 Star Acupuncture, P.C. v MVAIC 2012 NY Slip Op 50756(U) Decided on April 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

3 Star Acupuncture, P.C. as Assignee of ANGEL BONILLA, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 9, 2010, deemed from a judgment of the same court entered September 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 9, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $460.

ORDERED that the judgment is reversed, without costs, the order entered September 9, 2010 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 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 MVAIC 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 (see Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from MVAIC had 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]). Accordingly, the judgment is reversed, the order entered September 9, 2010 is vacated, plaintiff's motion for summary judgment is denied and MVAIC's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. [*2]
Decision Date: April 25, 2012