Opinion
17-048
04-21-2017
SML Acupuncture P.C., a/a/o Jasmine Dunham, Plaintiff-Appellant, v. MVAIC, Defendant-Respondent.
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 13, 2015, which granted defendant's motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Joseph E. Capella, J.), entered March 13, 2015, affirmed, with $10 costs.
MVAIC's submissions in support of its motion for summary judgment established, prima facie, 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]), and, thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant had not been satisfied (see Shore Med. Diagnostic, P.C. v MVAIC, 41 Misc 3d 131[A], 2013 NY Slip Op 51749[U] [App Term, 2nd, 11th and 13th Jud Dists 2013]; Yklik, Inc. v MVAIC, 35 Misc 3d 145[A], 2012 NY Slip Op 51012[U] [App Term, 2nd, 11th and 13th Jud Dists 2012]). In opposition, plaintiff failed to raise any triable issue. MVAIC's failure to timely deny the claim does not preclude it from asserting a lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: April 21, 2017