EQUILIBRIUM OF LIFE ACUPUNCTURE v. MVAIC (2022)

Order (Judy H. Kim, J.), entered February 22, 2021, 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 as required by Insurance Law § 5208(a). Thus, a condition 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]).

In opposition, respondent failed to raise any triable issue of fact. MVAIC's prior denial of the claim on other grounds does not preclude it from asserting a lack of coverage defense (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur