Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered October 20, 2004. The order denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment.

Order unanimously modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied as to plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim's Acupuncture P.C., and Somun [*2]
Acupuncture P.C., as assignees of Tsilya Lyukhter; as so modified, affirmed without costs.

In this action seeking to recover first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) opposed plaintiffs' motion for summary judgment and cross-moved for summary judgment in its favor on the ground, inter alia, that plaintiffs' assignors failed to file a timely notice of claim.

We note initially that the motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, we find that defendant's cross motion for summary judgment dismissing the claims as to said plaintiff was properly granted. The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs subsequent to April 5, 2002, the effective date of the revised insurance regulations which "no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11[a]; Insurance Law § 5102 [a] [1])" (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]). Such costs are "nonassignable" (id.) and must be dismissed (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

For the reasons set forth herein, the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim's Acupuncture P.C., and Somun Acupuncture P.C., was properly denied, and defendant's cross motion for summary judgment dismissing said plaintiffs' claims pertaining to assignor Nataliya Romanchukevich and Alexander Krupnik was properly granted.

Article 52 of the Insurance Law establishing the MVAIC was enacted "to provide persons injured by financially irresponsible motorists a fund from which they could seek some compensation for their injuries" (Matter of Lloyd [MVAIC], 23 NY2d 478, 481 [1969]). Article 52 was also "intended 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 [b]). Pursuant to Insurance Law § 5221 (b) (2), "[a] qualified person who has complied with all the applicable requirements of this article [Insurance Law article 52] shall be deemed to be a covered person and shall have only such rights as a covered person may have under article fifty-one of this chapter." Moreover, with respect to no-fault benefits, the MVAIC "shall have only those rights and obligations which are applicable to an insurer subject to article fifty-one of this chapter" (Insurance Law § 5221 [b] [3]; see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]).

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]" (see Insurance Law § 5208 [a] [1], [3]). 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 (see Insurance Law § 5221 [b] [2]; 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]). Defendant MVAIC's failure to timely deny plaintiffs' claims is of no consequence and does not preclude dismissal of plaintiffs' causes of action based upon lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 [*3]NY2d 131 [1982]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U], supra).

MVAIC's submissions in support of its cross motion for summary judgment made a prima facie showing that assignors Romanchukevich and Krupnik failed to timely file their notices of claim within 180 days of the accident (Insurance Law § 5208 [a] [1]; see Matter of ATM One v Landaverde, 2 NY3d 472 [2004]). Said assignors did not seek leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). The burden thus shifted to plaintiffs to show either 1) the timely filing of a notice of claim within 180 days of the accident, or, if applicable, 2) the timely filing of a notice of claim within 180 days of receipt of notice that the insurer of the person alleged to be liable for damages has disclaimed liability or denied coverage (Insurance Law § 5208 [a] [3]). Plaintiffs' papers in opposition to defendant's cross motion are insufficient to raise an issue of fact as to whether the notices of claim were timely filed within the prescribed statutory time periods. Having failed to satisfy a condition precedent to the right of recovery against the MVAIC, plaintiffs' assignors were not "covered" persons within the meaning of the statute (see Insurance Law § 5221 [b] [2]). Consequently, plaintiffs are not entitled to recover on their claims for no-fault benefits pertaining to assignor Romanchukevich and Krupnik, and the court below properly granted defendant's cross motion for summary judgment dismissing the claims with regard to them (see e.g. Ames v City of New York, 280 AD2d 625 [2001]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U], supra).

With regard to the claims pertaining to assignor Tsilya Lyukhter, there are issues of fact presented on the record as to whether said assignor filed a timely and properly completed notice of claim, and hence whether there has been compliance with a [*4]
condition precedent to commencing a suit against the MVAIC for no-fault benefits. Therefore, while plaintiffs' motion for summary judgment as to assignor Lyukhter was properly denied, defendant's cross motion seeking to dismiss the claims pertaining to this assignor should also have been denied.
Decision Date: February 03, 2006