An interesting MVAIC issueOctober 26, 2019

I usually do not focus or discuss too many MVAIC cases, mainly because they do not terribly interest me and the Second Department has held that every distinctive issue involving MVAIC is either a coverage defense or an additional element of Plaintiff’s prima facie case. The First Department holds that every “condition precedent” is a defense and does not require remedies to be exhausted as a condition precedent. Pardon me for not focusing on MVAIC issues – do not think less of me.

This case interested me due to one sentence:

“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].’ 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” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.”

Same case in Civil Bronx: Affirmed with $30 costs. By the way, we have seen the bolded comment before in prior cases. But I think the Court is wrong here. What do I know?

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