Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2007. The order denied defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that there was no coverage due to the failure of plaintiff's assignor to file a timely notice of claim. The court denied MVAIC's unopposed motion. This appeal by MVAIC ensued.

"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]" (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006] [citations and internal quotation marks omitted]; see Insurance Law § 5208 [a]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). 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 (see Insurance Law § 5221 [b] [2]; Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]; A.B. Med. Servs. PLLC, 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). [*2]

MVAIC's submissions in support of its motion for summary judgment made a prima facie showing that plaintiff's assignor failed to timely file a notice of claim (see Insurance Law § 5208 [a]). By defaulting on the motion, plaintiff did not demonstrate that its assignor timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). As a result, the order denying MVAIC's unopposed motion for summary judgment dismissing the complaint is reversed and defendant's motion is granted (see Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]; A.B. Med. Servs. PLLC, 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U]; Ocean Diagnostic Imaging, 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U]).

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 09, 2009