Acupuncture Approach, P.C. v MVAIC

[*1] Acupuncture Approach, P.C. v MVAIC 2018 NY Slip Op 51776(U) Decided on November 30, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1235 K C

Acupuncture Approach, P.C., as Assignee of Richard Walker, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), dated February 18, 2015, and from a judgment of that court entered January 12, 2016. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $723.54.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); 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.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $723.54.

"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].' 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" (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its [*2]prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]).

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 ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018