Acupuncture Approach, P.C. v. MVAIC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 30, 2018
• Docket: 2018 NYSlipOp 51776(U)
• Status: Published

Opinion

<partyblock>

<br><br><div align="center"><b><font size="+1">Acupuncture Approach, P.C., as Assignee of Richard Walker, Respondent,

<br><br>against<br><br>MVAIC, Appellant.

</font></b></div><br><br>

<p>

Marshall &amp; Marshall, PLLC (Barbara Carabell of counsel), for appellant.

Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

</p>

<p>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.</p>

<p>ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (<i>see</i> CCA 1702); and it is further,</p>

<p>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.</p>

<p>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.</p>

<p>"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" (<a href="../2016/2016_51535.htm" target="_blank"><i>Avicenna Med. Arts, P.L.L.C. v MVAIC</i>, 53 Misc 3d 142</a>[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2016] [internal citation omitted]; <i>see</i> 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 <font color="FF0000">[*2]</font>prima facie case (<i>see</i> Insurance Law  5202 [b]; 5208, 5221 [b] [2]). </p>

<p>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.</p>

<p>PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.</p>

<br>

<br>ENTER:

<br>Paul Kenny

<br>Chief Clerk

<br>Decision Date: November 30, 2018

<br><br><div align="center">

<form method="LINK" action="../../slipidx/at_2_idxtable.shtml">

<input type="submit" value="Return to Decision List">

</form>

</div>

</partyblock>