Prestige Med. & Surgical Supply, Inc. v. Chubb Indem. Ins. Co., 2010 NY Slip Op 50449(U) (N.Y. App. Term 3/10/2010), 2009-287 KC.

• Decision Date: 10 March 2010
• Docket Number: 2009-287 KC.
• Court: New York Supreme Court — Appellate Term
• Parties: PRESTIGE MEDICAL & SURGICAL SUPPLY, INC. A/A/O MICHAEL MARTIN, Appellant, v. CHUBB INDEMNITY INS. CO., Respondent.

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2010 NY Slip Op 50449(U)

PRESTIGE MEDICAL & SURGICAL SUPPLY, INC. A/A/O MICHAEL MARTIN, Appellant, v. CHUBB INDEMNITY INS. CO., Respondent.

2009-287 KC.

Supreme Court, Appellate Term, Second Department.

Decided March 10, 2010.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered January 3, 2008. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the claim on the ground that plaintiff had failed to submit the claim within 45 days after the date the supplies at issue had been provided to its assignor. Insofar as is relevant to this appeal, plaintiff opposed defendant's motion for summary judgment on the ground that defendant had waived reliance on the 45-day rule because it had failed to advise plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that the untimely submission of a claim would be excused where the applicant provided reasonable justification for its failure to give timely notice of the claim. The Civil Court granted defendant's motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

The affidavit of defendant's claims adjuster sufficiently established the timely mailing of the denial of claim form, since the affidavit described in detail defendant's standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant denied the claim on the ground that plaintiff's submission of the claim was untimely. The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim was denied by another insurance carrier, plaintiff failed to proffer any explanation as...