SK Prime Med. Supply, Inc. v MVAIC

[*1] SK Prime Med. Supply, Inc. v MVAIC 2015 NY Slip Op 51663(U) Decided on November 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1411 K C

SK Prime Medical Supply, Inc. as Assignee of TRACEY MACKIE, Respondent,

against

MVAIC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 4, 2013. The judgment, entered pursuant to a decision of the same court dated October 11, 2012, after a nonjury trial, awarded plaintiff the principal sum of $815.62.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated October 11, 2012 is deemed a premature notice of appeal from the judgment entered June 4, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At a nonjury trial in this action to recover assigned first-party no-fault benefits, plaintiff's sole witness testified that she had created a claim form on behalf of plaintiff, that she had mailed it to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) and that the claim had not been paid. Following the trial, the Civil Court awarded plaintiff the principal sum of $815.62.

"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])" (A.B. Med. Servs. 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]). Likewise, proof that a claimant is a resident of the State of New York is a condition precedent to the claimant being a "qualified person" (Insurance Law § 5202 [b]) and thus a "covered person" who is eligible to recover no-fault benefits from MVAIC (Insurance Law § 5221 [b] [2]). Although plaintiff's witness testified that she had mailed the claim form to MVAIC and that the claim had not been paid, since plaintiff did not establish that plaintiff's assignor provided MVAIC with proof that the assignor was a resident of the State of New York on the date of the accident and that a notice of intention to make claim form was submitted to MVAIC, plaintiff failed to establish its prima facie case (Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]; Peace of Mind, Social Work, P.C. v MVAIC, 33 Misc 3d 126[A], 2011 NY Slip Op 51834 [App Term, 2d, 11th & 13th Jud Dists 2011]; AP Orthopedic & Rehabilitation, P.C. v MVAIC, 32 Misc 3d 133[A], 2011 NY Slip Op 51448[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2011]; see also Olmecs Med. Supplies, Inc. v MVAIC, 38 Misc 3d 140[A], 2013 NY Slip Op 50218 [App Term, 9th & 10th Jud Dists 2013]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 12, 2015