| Equilibrium of Life Acupuncture, P.C. v MVAIC |
| 2022 NY Slip Op 50113(U) [74 Misc 3d 129(A)] |
| Decided on February 22, 2022 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 24, 2022; it will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Judy H. Kim, J.), entered February 22, 2021, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Judy H. Kim, J.), entered February 22, 2021, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant MVAIC's submission in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of intention to make claim as required by Insurance Law § 5208(a). Thus, a condition precedent to plaintiff's right to apply for payment of no-fault benefits from defendant had not been satisfied (see SML Acupuncture P.C. v MVAIC, 55 Misc 3d 138[A], 2017 NY Slip Op 50539[U] [App Term, 1st Dept 2017]).
In opposition, respondent failed to raise any triable issue of fact. MVAIC's prior denial of the claim on other grounds does not preclude it from asserting a lack of coverage defense (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208.
All concur
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.