Tam Med. Supply Corp. v MVAIC

[*1] Tam Med. Supply Corp. v MVAIC 2017 NY Slip Op 51459(U) Decided on October 27, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-2478 Q C

TAM Medical Supply Corp., as Assignee of Alcindor, Evens, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

Contrary to plaintiff's sole contention, MVAIC established that plaintiff had not timely filed an affidavit providing MVAIC with a notice of intention to make claim (see Insurance Law § 5208 [a]) and, thus, plaintiff's assignor is not a "covered person" (Insurance Law § 5221 [b] [2]). Consequently, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 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 Dept, 2d & 11th Jud Dists 2007]).

Accordingly the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017