Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 15, 2009, deemed from a judgment of the same court entered February 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 15, 2009 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $216.08.

ORDERED that the judgment is reversed without costs, the order entered January 15, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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 dismissing the complaint on the ground that there was no coverage due to the failure to file a timely notice of claim and the failure to exhaust all remedies. Plaintiff opposed defendant's motion and cross-moved for summary judgment. The Civil Court denied MVAIC's motion and granted plaintiff's cross motion for summary judgment. This appeal by MVAIC ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The filing of a timely notice of claim is a condition precedent to the right to apply for payment from MVAIC (see Insurance Law § 5208 [a]; 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]). 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" who is entitled to recover no-fault benefits from MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor [*2]Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).

MVAIC's submissions in support of its motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]). Plaintiff failed to demonstrate that there has been a timely filing of a notice of claim, a filing of the notice of claim as soon as it was reasonably possible do so, or that leave was sought to file a late notice of claim (see Insurance Law § 5208 [b], [c]). As a result, the Civil Court should have granted MVAIC's motion for summary judgment dismissing the complaint. Accordingly, the judgment is reversed, the order entered January 15, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 16, 2010