TAM Med. Supply Corp. v. MVAIC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 27, 2016
• Docket: 2016 NYSlipOp 51436(U)
• Status: Published

Opinion

TAM Medical Supply Corp., as Assignee of RITA MOLINA, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 17, 2014. The order denied plaintiff's motion for summary judgment and granted defendant's cross 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 denied plaintiff's motion for summary judgment and granted the motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

MVAIC established that plaintiff had not timely filed an affidavit providing MVAIC with a notice of intention to file a claim. In opposition to MVAIC's motion, plaintiff failed to raise a triable issue of fact by demonstrating that leave had been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]). Consequently, plaintiff's assignor is not a "covered person" within the meaning of the statute (see Insurance Law § 5221 [b] [2]), and a condition precedent to the right to apply for payment of no-fault benefits from MVAIC has not been satisfied (Larisa Supplies, Inc. v MVAIC, 31 Misc 3d 129[A], 2011 NY Slip Op 50562[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 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]).

Accordingly, the order is affirmed.

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

Decision Date: September 27, 2016