Village Med. Supply, Inc. v MVAIC

[*1] Village Med. Supply, Inc. v MVAIC 2016 NY Slip Op 51421(U) 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 This opinion is uncorrected and will not be published in the printed Official Reports.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
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-809 K C

Village Medical Supply, Inc., as Assignee of MIGUEL JIMENEZ, Respondent,

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, 2016