Bronx Acupuncture Therapy, P.C. v. MVAIC ( 2019 )

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<br><br><div align="center"><b><font size="+1">Bronx Acupuncture Therapy, P.C., as Assignee of Phillip Gibbs, Respondent,

<br><br>against<br><br>MVAIC, Appellant. </font></b></div><br><br>

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Marshall &amp; Marshall, PLLC (Barbara Carabell of counsel), for appellant.

Gary Tsirelman, P.C. (Evan Polansky of counsel), for respondent.

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<p>Appeal from a judgment of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 2, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,130.</p>

<p>ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.</p>

<p>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 a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,130.</p>

<p>"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" (<a href="../2016/2016_51535.htm" target="_blank"><i>Avicenna Med. Arts, P.L.L.C. v MVAIC</i>, 53 Misc 3d 142</a>[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2016] [citation omitted]; <i>see</i> Insurance Law  5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its <font color="FF0000">[*2]</font>prima facie case (<i>see</i> Insurance Law  5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.</p>

<p>Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.</p>

<p>PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.</p>

<br>ENTER:

<br>Paul Kenny

<br>Chief Clerk

<br>Decision Date: October 18, 2019

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