| Metro Health Prods., Inc. v MVAIC |
| 2022 NY Slip Op 50588(U) [75 Misc 3d 139(A)] |
| Decided on June 10, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Marshall & Marshall (Frank D'Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 22, 2019. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,451.17.
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.
After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff against defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) in the principal sum of $3,451.17.
At the outset of the trial, it was noted that, by a prior order, the issue for trial would be limited (see CPLR 3212 [g]) to whether the applicant had reasonable justification for failing to timely submit a notice of claim (see Insurance Law § 5208 [b] [1]) or whether the applicant had obtained leave of court to permit it to be filed late (see Insurance Law § 5208 [b] [2]). Plaintiff called no witnesses and made no attempt to establish either a reasonable justification for failing to timely submit a notice of claim or that the applicant had obtained leave to of court to permit it to be filed late.
"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 [*2]142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that it was not reasonably possible to file a notice of claim within a timely manner (see Insurance Law § 5208 [b] [1]) or that leave of court had been obtained to permit the notice of claim to be filed late (see Insurance Law § 5208 [b] [2]), 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.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.