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Olmecs Medical Supplies, Inc. As Assignee of Georges Labonte v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


January 30, 2013

OLMECS MEDICAL SUPPLIES, INC. AS ASSIGNEE OF GEORGES LABONTE,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered June 4, 2008.

Olmecs Med. Supplies, Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2013

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $871.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a judgment dismissing the complaint.

At a non-jury trial of this action to recover assigned first-party no-fault benefits, plaintiff relied upon its notice to admit to establish the submission of its claim and that the claim had not been paid. Plaintiff called no witnesses and made no attempt to establish that a timely notice of intention to make a claim had been submitted to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Defendant, after arguing that proof of a timely notice of intention to make a claim was an element of plaintiff's prima facie case, rested without calling any witnesses. The District Court held that plaintiff had established its prima facie case and awarded judgment to plaintiff. The sole issue raised on appeal by defendant is whether plaintiff had to prove, as part of its prima facie case, the timely submission to MVAIC of a sworn notice of intention to make a claim.

The filing of a timely affidavit providing MVAIC with notice of intention to make a claim is a condition precedent to the right to apply for payment from MVAIC (see Insurance Law § 5208 [a]). Unless plaintiff's assignor had complied with the requirements of Insurance Law article 52, including, but not limited to, Insurance Law § 5208, plaintiff's assignor is not deemed to be a "covered person" and, as a result, does not have the rights afforded to a "covered person" under Insurance Law article 51 (Insurance Law § 5221 [b] [2]). As plaintiff did not establish that a timely sworn notice of intention to make claim had been submitted to MVAIC, plaintiff did not demonstrate that its assignor was eligible to recover no-fault benefits from MVAIC (Insurance Law §§ 5208, 5221 [b] [2]; see also Peace of Mind, Social Work, P.C. v MVAIC, 33 Misc 3d 126[A], 2011 NY Slip Op 51834[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]; 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]). Consequently, plaintiff failed to establish its prima facie case (Insurance Law §§ 5208, 5221 [b] [2]).

Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment dismissing the complaint.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.

Decision Date: January 30, 2013

20130130

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