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.