Opinion
No. 2010–2651 K C.
2012-05-14
YKLIK, INC. as Assignee of Hermenegilda DeJesus, Respondent, v. MVAIC, Appellant.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 1, 2010. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, 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 so much an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint.
Since MVAIC established that there had been no timely filing of a sworn notice of claim and that leave had not been sought to file a late notice of claim ( seeInsurance Law § 5208[a], [c] ), plaintiff's assignor is not a covered person ( seeInsurance 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 N.Y. Slip Op 50041[U] [App Term, 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 & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc.3d 137[A], 2005 N.Y. Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005] ). Moreover, plaintiff and its assignor did not exhaust all remedies against the owner of the vehicle in which the assignor had been a passenger, even though plaintiff, as assignee, was required to do so before seeking relief from MVAIC (Hauswirth v. American Home Assur. Co., 244 A.D.2d 528 [1997];Modern Art Med., P.C. v. MVAIC, 22 Misc.3d 126 [A], 2008 N.Y. Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008] ).
Accordingly, in light of the foregoing, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.