T & S Med. Supply Corp. v MVAIC

[*1] T & S Med. Supply Corp. v MVAIC 2017 NY Slip Op 51755(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 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
2014-2017 K C

T & S Medical Supply Corp., as Assignee of Marie C. Millord, Respondent,

against

MVAIC, Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 22, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

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 of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff's assignor failed to demonstrate that she was a "qualified" person entitled to benefits from MVAIC, as the record indicates that plaintiff's assignor was the named insured (see Insurance Law §§ 5202 [b]; 5208 [a] [1]; Barillas v Rivera, 32 AD3d 872 [2006]; see also Naula v Dela Puente, 48 AD3d 434 [2008]). Moreover,

"[t]he 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 [*2]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 Dept,) 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], *2 [App Term, 2d Dept, 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 Dept, 2d, 11th & 13th Jud Dists 2009]).

Defendant established that it had not received such an affidavit.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017