Brookside Physical Therapy v. MVAIC

Brookside Physical Therapy v MVAIC (2021 NY Slip Op 50998(U)) [*1] Brookside Physical Therapy v MVAIC 2021 NY Slip Op 50998(U) [73 Misc 3d 132(A)] Decided on October 26, 2021 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Edmead, P.J., McShan, Hagler, JJ. 570104/21 Brookside Physical Therapy a/a/o Crummell Curtis, Plaintiff-Respondent, against MVAIC, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered November 5, 2020, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Jose A. Padilla, Jr., J.), entered November 5, 2020, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Defendant MVAIC's submission in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of intention to make claim (see Insurance Law § 5208[a]) and that no notice of the accident had been given "to a police, peace, or judicial officer" within 24 hours of the alleged occurrence (Insurance Law § 5208[a][2][A]). Thus, conditions precedent to plaintiff's right to apply for payment of no-fault benefits from defendant had not been satisfied (see SML Acupuncture P.C. v MVAIC, 55 Misc 3d 138[A], 2017 NY Slip Op 50539[U] [App Term, 1st Dept 2017]; Karina K. Acupuncture PC v MVAIC, 55 Misc 3d 138[A], 2017 NY Slip Op 50537[U] [App Term, 1st Dept 2017]). In opposition, plaintiff failed to raise any triable issue. MVAIC's failure to timely deny the claim does not preclude it from asserting a lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 26, 2021