ZZ Acupuncture, P.C. v. MVAIC

ZZ Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50589(U)) [*1] ZZ Acupuncture, P.C. v MVAIC 2022 NY Slip Op 50589(U) [75 Misc 3d 139(A)] Decided on June 10, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2020-896 K C ZZ Acupuncture, P.C., as Assignee of Isaac Labin, Respondent, against MVAIC, Appellant. Marshall & Marshall (Frank D'Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated September 14, 2020. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. ORDERED that the order is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied. 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 denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. "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]. 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" (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As MVAIC established that it had not received such an affidavit, MVAIC's motion for summary judgment dismissing the complaint should have been granted. We reach no other issue. Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 10, 2022