Central Radiology Servs., P.C. v MVAIC

[*1] Central Radiology Servs., P.C. v MVAIC 2010 NY Slip Op 51454(U) [28 Misc 3d 137(A)] Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 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
2009-440 Q C.

Central Radiology Services, P.C. as Assignee of ALBARO IFARO, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 20, 2009, deemed from a judgment of the same court entered March 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 20, 2009 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $2,636.01.

ORDERED that the judgment is reversed without costs, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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 on the ground that there was no coverage due to the failure of plaintiff or its assignor to, among other things, file a timely notice of claim. Plaintiff cross-moved for summary judgment. The Civil Court denied MVAIC's motion for summary judgment and granted plaintiff's cross motion for summary judgment. This appeal by MVAIC ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

"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]" (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006] [citations and internal quotation marks omitted]; see Insurance Law § 5208 [a]; 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]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that plaintiff's assignor is a "covered person" who is entitled to recover no-fault benefits from MVAIC (see Insurance Law § 5221 [b] [2]; M.N.M. Med. Health Care, P.C., 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U]; Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]; A.B. Med. Servs. PLLC, 10 Misc 3d [*2]145[A], 2006 NY Slip Op 50139[U]; 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]).

Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: August 12, 2010