Norman Y. Schoenberg, M.D., P.C. v. N.Y.C. Transit Auth.

• Decision Date: 15 March 2013
• Docket Number: No. 2011–2833 K C.,2011–2833 K C.
• Citation: 2013 N.Y. Slip Op. 50421,39 Misc.3d 128,971 N.Y.S.2d 74
• Parties: Norman Y. SCHOENBERG, M.D., P.C. as Assignee of Odell Mullings, Respondent, v. N.Y.C. TRANSIT AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

39 Misc.3d 128

971 N.Y.S.2d 74

2013 N.Y. Slip Op. 50421

Norman Y. SCHOENBERG, M.D., P.C. as Assignee of Odell Mullings, Respondent,

v.N.Y.C. TRANSIT AUTHORITY, Appellant.

No. 2011–2833 K C.

Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts.

March 15, 2013.

OPINION TEXT STARTS HEREAppeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 19, 2011. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

Present: RIOS, J.P., PESCE and ALIOTTA, JJ.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied its unopposed motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant proffered an affidavit by its claims examiner, which was sufficient to establish that defendant's denial of claim form had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 A.D.3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App Term, 2d & 11th Jud Dists 2007] ) and that plaintiff had submitted its claim to defendant more than 45 days after the date the services had been rendered to plaintiff's assignor ( see Insurance Department Regulations [11 NYCRR] § 65–2.4). Defendant's denial of claim form adequately advised plaintiff of the basis for the denial, and it further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness. Defendant annexed to its motion papers a letter from plaintiff's attorney, who stated that, initially, the claim had been inadvertently submitted to a different carrier, but he failed to proffer any explanation as to why that had happened. Under the circumstances, defendant's moving papers properly established its prima facie entitlement to summary judgment, and, therefore, its unopposed motion should have been granted ( see Prestige Med. & Surgical Supply, Inc. v. Chubb Indem. Ins. Co., 26 Misc.3d 145[A], 2010 N.Y. Slip Op 50449[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ).

Accordingly, the order, insofar as appealed from, is reversed and defendant's ...