Bell Air Med. Supply, LLC v MVAIC

[*1] Bell Air Med. Supply, LLC v MVAIC 2007 NY Slip Op 51607(U) [16 Misc 3d 135(A)] Decided on August 16, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-539 K C.

Bell Air Medical Supply, LLC a/a/o Tiffany Waddell, Denise Waddell and Abuoadan Jafar, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered February 10, 2006. The order granted defendant's motion for summary judgment dismissing the complaint.

Order modified by denying the branch of defendant's motion which sought summary judgment dismissing the cause of action pertaining to claims for no-fault benefits assigned to plaintiff by Denise Waddell; as so modified, 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) moved for summary judgment dismissing the complaint. The court granted defendant's motion, dismissed plaintiff's complaint and this appeal by plaintiff 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, plaintiff was required to comply with all the applicable requirements of Insurance Law article 52 (see Insurance Law § 5221 [b] [2]).

Inasmuch as the record establishes that Tiffany Waddell and Abuoadan Jafar failed to file a timely notice of claim or seek leave to file a late notice of claim (see Insurance Law § 5208 [a], [*2][c]), these assignors were not "covered person[s]" (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 with respect to assignors Tiffany Waddell and Abuoadan Jafar (see Insurance Law § 5221 [b] [2]), and defendant was entitled to summary judgment dismissing said causes of action (see 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]; see e.g. Ames v City of New York, 280 AD2d 625 [2001]).

Although the court dismissed the cause of action pertaining to Denise Waddell, on the grounds that she failed to comply with Insurance Law § 5208 and due to the expiration of the statute of limitations, this was error. The record does not support a determination that there was a failure to comply with a condition precedent to the right to apply for payment from defendant (see Insurance Law § 5208 [a]). In addition, since the record does not establish when all of the facts necessary to said cause of action occurred, so as to establish when the statute of limitations began to run (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; Micha v Merchants Mut. Ins. Co., 94 AD2d 835 [1983]), defendant failed to prove as a matter of law that this cause of action was commenced after the statute of limitations expired (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the branch of defendant's motion which sought summary judgment dismissing the cause of action seeking to recover no-fault benefits assigned to plaintiff by Denise Waddell should have been denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007