Five Boro Psychological Servs., P.C. v MVAIC (2010 NY Slip Op 50647(U))

Five Boro Psychological Servs., P.C. v MVAIC

2010 NY Slip Op 50647(U) [27 Misc 3d 131(A)]

Decided on April 9, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Five Boro Psychological Services, P.C. a/a/o YAYHA TILLMAN, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 6, 2008. The order granted defendant's motion for summary judgment 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)moved for summary judgment on the ground that there was no coverage because, among other things, plaintiff's assignor had not provided MVAIC with a timely completed, notarized notice of intention to make claim form and plaintiff's assignor also had failed to demonstrate that she was a resident of the State of New York. Plaintiff opposed the motion on the grounds that MVAIC had failed to timely deny plaintiff's claims and that MVAIC did not establish that plaintiff's assignor was required to provide a notarized notice of intention to make claim form and to demonstrate that she was a resident of the State of New York. The Civil Court granted MVAIC's motion, and this appeal by plaintiff ensued.

Since MVAIC established that there was no timely filing of a notice of claim and that leave was not sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), the assignor is not a covered person (see Insurance Law § 5221 [b] [2]), and a condition precedent to the right to apply for payment of no-fault benefits from MVAIC was not satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 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 & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). Moreover, MVAIC established that it was not provided with proof that plaintiff's assignor was a resident of the State of New York (see RAZ Acupuncture, P.C. v MVAIC, 25 Misc 3d 138[A], 2009 NY Slip Op 52362[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, MVAIC's motion for summary judgment dismissing the complaint was properly granted.