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Appellate Term, Second Department:May 9, 2019

Appellate Term, Second Department:May 9, 2019

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Second, Eleventh and Thirteenth JudicIal DistrictsCases Released on: May 9, 2019

By: Pesce, P.J., Aliotta, Elliot, JJ.The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for respondent.2016-1556 K C. JCC MED., P.C. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 3, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law §5208 [a]), plaintiff’s assignor is not a “covered person” (Insurance Law §5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v. MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v. MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In opposition to MVAIC’s motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law §5208 [c]).Accordingly, the order is affirmed.May 3, 2019

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