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

[*1] Five Boro Psychological Servs., P.C. v MVAIC 2012 NY Slip Op 50751(U) Decided on April 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Five Boro Psychological Services, P.C. as Assignee of JAMAL WILKERSON, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered December 1, 2009. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is reversed, without costs, 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) appeals from an order which denied its motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

Since MVAIC established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff's assignor is not a covered person (see Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from MVAIC was not satisfied (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]; 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]). Accordingly, the order is reversed, MVAIC's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012