From Casetext: Smarter Legal Research

Bronx Acupuncture Therapy, P.C. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 18, 2019
65 Misc. 3d 139 (N.Y. App. Term 2019)

Opinion

2018-338 K C

10-18-2019

BRONX ACUPUNCTURE THERAPY, P.C., as Assignee of Phillip Gibbs, Respondent, v. MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Evan Polansky of counsel), for respondent.


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

Gary Tsirelman, P.C. (Evan Polansky of counsel), for respondent.

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

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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 a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,130.

"The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC" ( Avicenna Med. Arts, P.L.L.C. v MVAIC , 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citation omitted]; see Insurance Law §§ 5208 [a] [1], [3] ; 5221 [b] [2] ). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b] ; 5208, 5221 [b] [2] ). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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


Summaries of

Bronx Acupuncture Therapy, P.C. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 18, 2019
65 Misc. 3d 139 (N.Y. App. Term 2019)
Case details for

Bronx Acupuncture Therapy, P.C. v. MVAIC

Case Details

Full title:Bronx Acupuncture Therapy, P.C., as Assignee of Phillip Gibbs, Respondent…

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

Date published: Oct 18, 2019

Citations

65 Misc. 3d 139 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 51694
119 N.Y.S.3d 373