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 Lavar Chisolm, Respondent,

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

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Marshall &amp; Marshall, PLLC (Jeffrey Kadushin 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 June 30, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,420.</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>After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $1,420.</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] [internal quotation marks and 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 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., WESTON and ALIOTTA, JJ., concur.</p>

<br>ENTER:

<br>Paul Kenny

<br>Chief Clerk

<br>Decision Date: August 02, 2019

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