Opinion
2017-1522 K C
07-12-2019
LIDA'S MEDICAL SUPPLY, INC., as Assignee of Williams, James, Appellant, v. MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Jaime E. Gangemi (Jeffrey Kadushin of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
The Law Office of Jaime E. Gangemi (Jeffrey Kadushin of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
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 granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
In order for a bicyclist who has allegedly been injured in a hit-and-run accident, such as plaintiff's assignor herein, to be a "covered person" and obtain no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation, the person must have complied with all the applicable requirements of Insurance Law article 52 (see Howard M. Rombon, Ph.D., P.C. v MVAIC , 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ), including, but not limited to, the filing of an accident report within 24 hours of the occurrence ( Insurance Law § 5208 [a] [2] [A] ), unless a showing is made that it was "not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible" ( Insurance Law § 5208 [a] [2] [B] ; Canty v Motor Veh. Acc. Indem. Corp. , 95 AD2d 509, 511 [1983] ). In the instant case, defendant's claims examiner stated in his affidavit in support of defendant's motion that, despite repeated requests for proof that plaintiff's assignor had filed an accident report, plaintiff's assignor never provided such proof. Plaintiff's opposing papers are devoid of any indication that plaintiff's assignor complied with the reporting requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it "was not reasonably possible to make such a report" ( Insurance Law § 5208 [a] [2] [B] ). As a result, defendant was entitled to summary judgment dismissing the complaint (see Insurance Law § 5221 [b] [2] ; Velen Med. Supply v MVAIC , 33 Misc 3d 135[A], 2011 NY Slip Op 52016[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Meridian Health Acupuncture, P.C. v MVAIC , 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] ).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.