Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered August 13, 2008.
Peace of Mind, Social Work, P.C. v MVAIC
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 11, 2011
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,255.
ORDERED that the judgment is reversed, without 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 non-jury trial in this action to recover assigned first-party no-fault benefits, plaintiff's sole witness, an employee of a third-party biller, testified that she had created a claim form on behalf of plaintiff, that she had mailed it and that the claim had not been paid. Plaintiff's witness did not even attempt to establish that a notice of intention to make claim form had been submitted to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). In its decision, the Civil Court stated that although plaintiff had submitted the claim form more than 45 days after the services had been rendered, MVAIC had failed to establish that its denial of plaintiff's claim advised plaintiff that the untimely submission of the claim form would be excused if plaintiff had a reasonable excuse for the untimely submission (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). As a result, the court awarded judgment to plaintiff.
"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] , ). 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] ; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005])" (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 2d & 11th Jud Dists 2006]; see also M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY 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 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). As plaintiff did not establish that a notice of intention to make claim form was submitted to MVAIC, plaintiff failed to establish its prima facie case (Insurance Law § 5202 [b]; §§ 5208, 5221 [b] ). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the complaint.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011
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