DECISION AND ORDER Defendant moves seeking an order granting it summary judgment pursuant to CPLR §3212 and dismissing the complaint. Defendant asserts that because SHADEQUA LEWIS (Lewis or the assignor), the assignor, did not file a timely Notice of Claim, Lewis is not a qualified person under Insurance Law §5221(b)(1), and as such, not entitled to any no-fault benefits from defendant. Plaintiff VISION REHAB PC PT (plaintiff) opposes the instant motion, asserting that defendant’s failure to timely deny plaintiff’s claims for medical services provided, submitted pursuant to the no-fault law, preclude defendant from availing itself of the foregoing defense. Plaintiff also cross-moves seeking an order granting it summary judgment pursuant to CPLR §3212, asserting that because defendant failed to timely deny plaintiff’s claims for medical treatment provided to Lewis, plaintiff is entitled to summary judgment as a matter of law. Defendant opposes the instant cross-motion, asserting that the defense asserted — the failure to file a timely Notice of Claim — is a lack of coverage defense, which is not precluded by the failure to deny coverage within 30 days and can be raised at any time. For the reasons that follow hereinafter, defendant’s motion is granted and plaintiff’s cross-motion is denied. The instant action is for payment of no-fault insurance benefits for medical treatment. The endorsed complaint alleges, in relevant part, the following: Between April and June 2014, plaintiff, as a result of a covered event occurring on April 14, 2014, provided medical treatment to SHADEQUA LEWIS (Lewis or assignor). The value of said treatment was $958.82. Defendant, a no-fault1 insurer, who as a matter of law was required to cover the foregoing treatment was presented with proof of the treatment and failed to pay plaintiff for the same. Thus, plaintiff seeks a judgment in the amount of $958.82. In support of the instant motion, defendant submits an affidavit by Tarik Pollins (Pollins), a Qualifications Examiner employed by defendant, who states, upon a review of defendant’s records, in pertinent part, as follows: Plaintiff failed to receive payment for medical services provided to Lewis because plaintiff was not entitled to payment under the Insurance Law. Specifically, plaintiff failed to file a Notice of Claim within 90 days of the accident in which Lewis was involved. On April 14, 2014, Lewis was involved in an accident with an unidentified motor vehicle. Despite defendant mailing plaintiff multiple requests that it file a Notice of Intent to Make a Claim, in May, June, July and August 2014, Lewis did not file the forgoing notice until November 14, 2014, approximately seven months after the accident and four months beyond the 90th day after the accident. On November 18, 2014, defendant, mailed plaintiff an NF10 Denial of Claim Form, wherein it denied plaintiff’s claims for treatment rendered to Lewis on grounds that Lewis failed to file a Notice of Claim as required by Insurance Law §5208. Defendant submits all of the requests sent to plaintiff and referenced by Pollins in his affidavit and plaintiff’s Notice of Intention to Make Claim. The latter indicates that Lewis was involved in a motor vehicle accident on April 14, 2014 with a vehicle which fled the scene. The document is dated September 30, 2014. Defendant’s motion is granted insofar as it establishes that in failing to timely file a Notice of Intent to Make a Claim, plaintiff is not a qualified person under the Insurance Law and therefore not entitled to no-fault benefits and, thus, payment for medical treatment provided to Lewis. Standard of Review The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v. County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979][internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 AD2d 269, 270 [1st Dept 1999]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v. Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8, 12 [1960]). No-Fault Law, MVAIC and Notices of Claim Insurance Law §5208(a)(2)(A) states, in relevant part, that any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation Thus, the timely filing of a notice of claim is a condition precedent to a plaintiff’s right to apply for payment of no-fault benefits from the Motor Vehicle Accident Indemnification Corporation (MVAIC) (Insurance Law §5208; Hempstead Gen. Hosp. v. MVAIC, 97 AD2d 544, 544 [2d Dept 1983]; SML Acupuncture P.C. v. MVAIC, 55 Misc 3d 138[A], *1 [App Term 1st Dept 2017]; A.B. Medical Services, PLLC v. Motor Vehicle Acc. Indemnification Corp., 10 Misc3d 145[A], *2 [App Term, 2d Dept 11th Jud Dists 2006]). “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’ who is entitled to recover no-fault benefits from MVAIC” (M.N.M. Medical Health Care, P.C. v. MVAIC, 22 Misc.3d 128[A], *1 [App Term, 2d Dept 11th & 13th Jud Dists 2009]). An application seeking leave of court to file a late notice of claim must be made within one year from the beginning of the applicable period for filing the notice of claim (Insurance Law §5208(c); Walker v. Motor Veh. Acc. Indem. Corp., 41 AD2d 527, 528 [1st Dept 1973], affd sub nom, Walker v. Motor Veh. Acc. Indem. Corp., 33 NY2d 781 [1973]). Discussion Based on the foregoing, with Pollins’ affidavit and the Notice of Intent to Make a Claim filed by Lewis, defendant meets its prima facie burden by establishing that Lewis and indeed plaintiff failed to timely file a Notice of Claim within 90 days of the accident. To be sure, Pollins indicated that the accident herein occurred on April 14, 2014 but that plaintiff and/or Lewis did not file a Notice of Claim until November 14, 2014, some seven months later and more importantly four months after the expiration of the ninety day period prescribed by Insurance Law §5208. As noted above, the timely filing of a notice of claim is a condition precedent to a plaintiff’s right to apply for payment of no-fault benefits from MVAIC (Insurance Law §5208; Hempstead Gen. Hosp. at 544; SML Acupuncture P.C. at *1; A.B. Medical Services, PLLC at *2). Here, defendant’s evidence establishes that Lewis failed to comply with the foregoing requirement. Moreover, even though plaintiff has never moved for leave to file a belated notice of claim, an application seeking leave of court to file a late notice of claim must be made within one year from the beginning of the applicable period for filing the notice of claim (Insurance Law §5208(c); Walker at 528). Here, more than six years have elapsed from the date of the instant accident such that leave to file a belated notice of claim is precluded as a matter of law. Plaintiff fails to raise an issue of fact sufficient to preclude summary judgment. Contrary to plaintiff’s argument, defendant’s failure to timely deny plaintiff’s claims does not preclude it from asserting a lack of coverage defense because the failure to file a timely notice of claim is lack of coverage defense which can always be raised despite untimely denial of benefits (Cent. Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997] ["We are persuaded that an insurer, despite its failure to reject a claim within the 30-day period prescribed by Insurance Law §5106 (a) and 11 NYCRR 65.15(g)(3), may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition."]; SML Acupuncture at *1; A.B. Medical Services, PLLC at *2; Matter of MVAIC v. Interboro Med. Care & Diagnostic, P.C., 73 AD3d 667 [1st Dept 2010]). Insofar as plaintiff did not satisfy a condition precedent for recovery against defendant, she was not a “qualified” and thus, a “covered” person entitled to recover no-fault benefits from defendant. As such, Plaintiff, as an assignee who has no greater rights than those of its assignor (MB Advanced Equip., Inc. v. MVAIC, 48 Misc3d 1049, 1053 [Civ Ct, Kings County 2015]), may not recover on its claims for no-fault benefits. In light of the foregoing, the Court need not consider defendant’s remaining argument. Moreover, plaintiff’s cross-motion must also be denied insofar as it premises summary judgment on the unavailing claim that defendant’s untimely disclaimer precludes the successful application of defendant’s defense based on the absence of a timely notice of claim (see (Cent. Gen. Hosp. at 199; SML Acupuncture at *1; A.B. Medical Services, PLLC at *2; Matter of MVAIC at 667). Accordingly, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied. It is hereby ORDERED that the Clerk dismiss the plaintiff’s complaint, with prejudice. It is further ORDERED that defendant serve a copy of this Decision and Order upon plaintiff, with Notice of Entry, within thirty (30) days hereof. This constitutes the Decision and Order of this Court.
