ACUPUNCTURE APPROACH v. MVAIC (2018)

Appeal from a decision of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), dated February 18, 2015, and from a judgment of that court entered January 12, 2016. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $723.54.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); and it is further,

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.

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 $723.54.

“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 citation omitted]; see 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 (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2] ).

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.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.