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Brooklyn Heights Physical Therapy, P.C. As Assignee of Nestor Pochet v. Mvaic

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 6, 2012

BROOKLYN HEIGHTS PHYSICAL THERAPY, P.C. AS ASSIGNEE OF NESTOR POCHET,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 19, 2010.

Brooklyn Hgts. Physical Therapy, P.C. v MVAIC

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is denied 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 an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

Since MVAIC established 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]), plaintiff's assignor is not a covered person (see Insurance Law § 5221 [b] [2]). Consequently, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from MVAIC has not been satisfied (Five Boro Psychological Servs., P.C. v MVAIC, 35 Misc 3d 133[A], 2012 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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]). Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and MVAIC's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 06, 2012

20120806

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