DECISION AND ORDER This is an action to recover first-party no-fault benefits arising from a motor vehicle accident on August 2, 2016 in which the assignor, Nico Mena was injured. Mr. Mena assigned his rights to collect first-party no-fault benefits to Plaintiff, a medical provider. However, Defendant, the Motor Vehicle Indemnity Corporation (MVAIC) claims that Plaintiff failed to fulfil a condition precedent to coverage by submitting a Notice of Claim and reporting the accident within 24 hours as required by Insurance Law §5208. As a result, Defendant moves for summary judgment on grounds that Plaintiff cannot recover because its assignor is not a “qualified person” or a “covered person” as provided by Insurance Law Articles 51 and 52. Plaintiff cross moves for summary judgment claiming that Defendant failed to pay or deny a no-fault claim within the statutory period. Opposition is submitted to both the motion and cross-motion.On October 3, 2016 and on November 8, 2016, Defendant mailed Plaintiff a request for a Notice of Intent to Make a Claim and other requests for information relevant to the claim.1 In support of its motion, Defendant submits the affidavit of its Qualifications Examiner who avers that the aforementioned requests were mailed to Plaintiff, but Plaintiff failed to respond to the request to file the Notice of Intent to Make a Claim or to submit related information requests.The New York State Legislature created MVAIC to “provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle” (Insurance Law §5201). The Legislature’s purpose in establishing MVAIC was to afford injured parties the same protection that they would have had the tortfeasor involved in a motor vehicle accident been covered by insurance (see Morisi v. Motor Veh. Acc. Indem. Corp., 19 A.D.2d 727 [2d Dept. 1963]). The Second Department has held that the statutory provisions creating and regulating MVAIC should be liberally construed to serve those ends (Englington Medical, P.C. v. Motor Veh. Acc. Indem. Corp., 81 A.D.3d 223 [2d Dept. 2011]; Hernandez v. Motor Veh. Acc. Indem. Corp., 120 A.D.3d 1347 [2d Dept. 2014]).In order to recover first-party no-fault benefits from MVAIC, a plaintiff is required to comply with all the applicable requirements of Insurance Law Article 52 (see Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc.3d 137[A] [App Term, 2d Dept, 2nd & 11th Jud Dists 2005]; T & S Medical Supply Corp. v. Motor Veh. Acc. Indem. Corp., 58 Misc.3d 131[A] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The filing of a timely affidavit providing MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]” (see Insurance Law §5208[a][1], [3]). “Compliance with the statutory requirement of timely filing a notice of claim must also be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, who is entitled to recover no-fault benefits from the MVAIC” (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 10 Misc.3d 145[A] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc.3d 137[A]; see also M.N.M. Med. Health Care, P.C. v. Motor Veh. Acc. Indem. Corp., 22 Misc.3d 128[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2009]; T & S Medical Supply Corp. v. Motor Veh. Acc. Indem. Corp., 58 Misc.3d 131[A]).Here, Defendant mailed Plaintiff two separate requests to file a notice of claim and to provide information including a report of the accident on October 3, 2016 and on November 8, 2016. However, Plaintiff did not respond. It is well established that an assignee stands in the shoes of an assignor and thus acquires no greater right than those of the assignor (New York & Presbyt. Hosp. v. Country-Wide Ins. Co, 17 NY3d 586, 593 [2011] ["…you cannot assign your right to benefits if your right to those benefits has not been triggered, or if you had no right to those benefits in the first place"]). Thus, the requirement to provide a notice of claim ultimately fell on Plaintiff as the insured’s assignee. When Plaintiff failed to respond to Defendant’s request and satisfy the condition precedent to coverage, Defendant properly declined coverage.Reviewing the claims and submissions of the parties, the court finds that Defendant made a prima facie showing that that Plaintiff failed to timely file of a notice of intent to make claim. Plaintiff’s failed to satisfy this condition precedent and establish that its assignor is a “qualified person” (Insurance Law §5202[b]) and, therefore, a “covered person” within the meaning of Insurance Law §5221(b)(2) (see M.N.M. Med. Health Care, P.C. v. Motor Veh. Acc. Indem. Corp., 22 Misc.3d 128[A]; Bell Air Med. Supply, LLC v. Motor Veh. Acc. Indem. Corp., 16 Misc.3d 135[A] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Daily Medical Equipment Distribution Center, Inc. v. Motor Veh. Acc. Indem. Corp., 58 Misc.3d 131[A] [App Term, 2d Dept, 11th &13th Jud Dists 2017]).In opposition to Defendant’s motion, Plaintiff failed to raise a triable issue of fact (see Insurance Law §5208 [c]; Veraso Medical Supply Corp. v. Motor Veh. Acc. Indem. Corp., 62 Misc.3d 150 [A] [Sup. Ct. 2019]). Plaintiff only insists that its failure file a notice of claim does not excuse Defendant’s requirement to timely deny or approve its claims within 30-days. Although Plaintiff relies on various case law in support of this argument, both the statute and recent case law from the Appellate Term clearly provide that the filing of a notice of claim is a mandatory condition precedent to coverage. Accordingly, Plaintiff’s cross-motion must be denied as “Defendant’s failure to timely deny [P]laintiff’s claims is of no consequence and does not preclude dismissal of Plaintiff’s action for lack of coverage” (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp. 10 Misc.3d 145[A]; see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199-200 [1997]; Zappone v. Home Ins. Co., 55 N.Y.2d 131 [1982]; Five Boro Psychological Servs., P.C. v. Motor Veh. Acc. Indem. Corp., 28 Misc.3d 130 [A] [App Term, 2d Dept, 11th &13th Jud Dists 2010]).Based on the foregoing, Defendant’s motion for summary judgment is granted and Plaintiff’s cross-motion for same is denied.This constitutes the decision and order of this court.Dated: April 15, 2019Brooklyn, NY
