Opinion
570226/21
02-22-2022
Equilibrium of Life Acupuncture, 570226/21 Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Judy H. Kim, J.), entered February 22, 2021, which denied its motion for summary judgment dismissing the complaint.
PRESENT: Edmead, P.J., Brigantti, Silvera, JJ.
PER CURIAM.
Order (Judy H. Kim, J.), entered February 22, 2021, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant MVAIC's submission in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of intention to make claim as required by Insurance Law § 5208(a). Thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant had not been satisfied (see SML Acupuncture P.C. v MVAIC, 55 Misc.3d 138 [A], 2017 NY Slip Op 50539[U] [App Term, 1st Dept 2017]).
In opposition, respondent failed to raise any triable issue of fact. MVAIC's prior denial of the claim on other grounds does not preclude it from asserting a lack of coverage defense (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199 [1997]). Matter of State Farm Ins. Co. v Domotor, 266 A.D.2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208.
All concur.