Five Boro Psychological Servs., P.C. v MVAIC

[*1] Five Boro Psychological Servs., P.C. v MVAIC 2010 NY Slip Op 51250(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-919 K C.

Five Boro Psychological Services, P.C. as Assignee of DAPHINE MORALES, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 19, 2009. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) opposed plaintiff's motion, arguing, among other things, that because a timely notice of intention to make claim form was never filed, plaintiff was not entitled to recover no-fault benefits from MVAIC. The Civil Court denied plaintiff's motion, and this appeal ensued.

"The 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 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 & 11th Jud Dists 2005]). Defendant MVAIC's failure to timely deny plaintiff['s] claim[ ] is of no consequence . . ." (A.B. Med. Servs. [*2]PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 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, 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]). Accordingly, plaintiff's motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 16, 2010