Veraso Med. Supply Corp. v. MVAIC

Appellate Terms of the Supreme Court of New York

Veraso Med. Supply Corp. v. MVAIC

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 8, 2019

Docket2019 NYSlipOp 50274(U)

StatusPublished

This text of Veraso Med. Supply Corp. v. MVAIC (Veraso Med. Supply Corp. v. MVAIC) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Veraso Med. Supply Corp. v. MVAIC, (N.Y. Ct. App. 2019).

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Opinion

Veraso Medical Supply Corp., as Assignee of Greer Foster Salvanita, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 10, 2016. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

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

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 and granted plaintiff's cross motion for summary judgment.

Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), plaintiff's assignor is not a "covered person" (Insurance Law § 5221 [b] [2]). Thus, 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]). In opposition to MVAIC's motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law § 5208 [c]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019

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Veraso Medical Supply Corp., as Assignee of Greer Foster Salvanita, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 10, 2016. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

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

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 and granted plaintiff's cross motion for summary judgment.

Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), plaintiff's assignor is not a "covered person" (Insurance Law § 5221 [b] [2]). Thus, 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]). In opposition to MVAIC's motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law § 5208 [c]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019

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