Metropolitan Med. Supplies, Inc. v MVAIC (2013 NY Slip Op 50257(U))

Metropolitan Med. Supplies, Inc. v MVAIC

2013 NY Slip Op 50257(U) [38 Misc 3d 143(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Metropolitan Medical Supplies, Inc. as Assignee of RODNEY RAMDEO, Respondent, —

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 15, 2011. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied and defendant's cross 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 granted plaintiff's motion for summary judgment and denied defendant's cross 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 (see Insurance Law
§ 5208 [a], [c]), plaintiff's assignor is not a covered person (see Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from MVAIC had not been 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. [*2]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]). In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and MVAIC's cross motion for summary judgment dismissing the complaint is granted.