Opinion
2015–62 Q C
12-15-2017
TAM MEDICAL SUPPLY CORP., as Assignee of Zapata, Leoncio, Appellant, v. MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.
Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted a cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
Since MVAIC established that there had been no timely filing of a notice of intention to make claim (see Insurance Law § 5208 [a] ), plaintiff's assignor is not a "covered person" ( Insurance Law § 5221 [b] [2] ). Thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v. MVAIC , 22 Misc 3d 128[A], 2009 NY 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 NY Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007] ). In opposition to MVAIC's cross motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law § 5208 [c] ).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.