VS Care Acupuncture, PC v MVAIC, 2016 NY Slip Op 50764(U)(App. Term 1st Dept. 2016)
“Our review of the record indicates that defendant failed to eliminate all triable issues with respect to whether plaintiff’s assignor filed a notice of intention to make a claim, since its own proof contains conflicting evidence (see Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]), specifically, a letter it sent to the assignor stating “we are in receipt of the Notice of Intention to Make Claim”
If the condition precedent to coverage is proof that the Assignor did not send a proper notice of claim, then why would a defendant introduce into their submissions a notice of intention to make a claim, unless bolstered with evidence that it was untimely or unreasonable? And to appeal the adverse decision just did not seem wise.
