Opinion
No. 2014–415K C.
10-11-2016
AVICENNA MEDICAL ARTS, P.L.L.C., as Assignee of Domingo Francisco Santana, Respondent, v. MVAIC, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 3, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,326.74.
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.
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff's billing manager testified that the claims had been mailed to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Following the trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,326.74.
"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]' (see Insurance Law § 5208[a][1], [3] ). 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 (see Insurance Law § 5221[b][2] ; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc.3d 137[A], 2005 N.Y. Slip Op 51271[U] [App Term, (2d Dept,) 2d & 11th Jud Dists (2005) ] )" (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 10 Misc.3d 145[A], 2006 N.Y. Slip Op 50139[U], *3 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also 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 Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v.. MVAIC, 16 Misc.3d 135[A], 2007 N.Y. Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007] ). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202[b] ; 5208, 5221[b][2] ).
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.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.