Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp.

[*1] Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp. 2005 NYSlipOp 51271(U) Decided on July 28, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 28, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-1253 K C

Ocean Diagnostic Imaging, a/a/o Abdulhamid Balfaqih, Appellant,

against

Motor Vehicle Accident Indemnification Corp., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered July 8, 2004, which failed to dispose of its motion for summary judgment and granted defendant's cross motion for summary judgment without prejudice to plaintiff seeking relief pursuant to Insurance Law § 5218.

Order unanimously modified by granting defendant's cross motion for summary judgment to dismiss the action with prejudice and by denying plaintiff's motion for summary judgment as academic; as so modified, affirmed without costs,

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After issue was joined, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action. The court granted defendant's cross motion, and this appeal ensued.

Insurance Law article 52 is intended to provide, inter alia, no-fault benefits for qualified persons for basic economic loss arising out of the use and operation of uninsured motor vehicles (see Insurance Law § 5201). In order to recover first-party no-fault benefits from defendant Motor Vehicle Accident Indemnification Corp., a plaintiff is required to comply with all the applicable requirements of Insurance Law article 52 (see Insurance Law § 5221 [b] [2]).

Although defendant's denial of plaintiff's instant claim for first-party no-fault benefits was untimely, it was of no consequence because defendant's denial was based upon a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v [*2]Home Ins. Co., 55 NY2d 131 [1982]). Inasmuch as the record establishes that plaintiff's assignor failed to file a timely notice of claim or seek leave to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff's assignor was not a "covered person" (see Insurance Law § 5221 [b] [2]), and a
condition precedent to the right to apply for payment from defendant was not satisfied (id.). As a result, plaintiff was not entitled to recover first-party no-fault benefits from defendant (see Insurance Law § 5221 [b] [2]). In light of the foregoing, plaintiff's motion for summary judgment lacked merit and defendant was entitled to summary judgment dismissing the action (see e.g. Ames v City of New York, 280 AD2d 625 [2001]).
Decision Date: July 28, 2005