Opinion
No. 2009–2379KC.
2012-08-24
JAMHIL MEDICAL, P.C. as Assignee of Nazir Mohammed, Respondent, v. MVAIC, Appellant.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 1, 2009. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without 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 an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.
Since MVAIC established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim ( seeInsurance Law § 5208[a], [c] ), plaintiff's assignor is not a covered person ( seeInsurance Law § 5221[b][2] ). Consequently, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from MVAIC has not been satisfied ( Five Boro Psychological Servs., P.C. v. MVAIC, 35 Misc.3d 133[A], 2012 N.Y. Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; M.N.M. Med. Health Care, P.C. v. MVAIC, 22 Misc.3d 128[A], 2009 N.Y. Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). Accordingly, the order is reversed and MVAIC's motion for summary judgment dismissing the complaint is granted.