From Casetext: Smarter Legal Research

Lida's Med. Supply, Inc. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 11, 2019
65 Misc. 3d 133 (N.Y. App. Term 2019)

Opinion

2017-2402 K C

10-11-2019

LIDA'S MEDICAL SUPPLY, INC., as Assignee of Raymons, Leroy, Respondent, v. MVAIC, Appellant.

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


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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

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 so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint.

Since MVAIC established that there had been no timely filing of a sworn 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] ).

In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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


Summaries of

Lida's Med. Supply, Inc. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 11, 2019
65 Misc. 3d 133 (N.Y. App. Term 2019)
Case details for

Lida's Med. Supply, Inc. v. MVAIC

Case Details

Full title:Lida's Medical Supply, Inc., as Assignee of Raymons, Leroy, Respondent, v…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Oct 11, 2019

Citations

65 Misc. 3d 133 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 51618
118 N.Y.S.3d 917