August 15, 2006

Mid Atl. Med., P.C. v Travelers Indem. Co. (2006 NY Slip Op 51579(U))

Headnote

The plaintiff provider sued for first-party no-fault benefits, and the insurer cross-moved for summary judgment on the ground that the provider did not submit proof of claim within 45 days of the services under 11 NYCRR 65-1.1 (d). It was uncontroverted that the plaintiff missed the 45-day period. The Appellate Term held, however, that an insurer is precluded from asserting late submission unless it issued a timely denial. The insurer's claims representative's affidavit neither stated that she actually mailed the denial nor described the office mailing practices, so proof of timely denial was lacking. The insurer's reply affidavit could not be considered to establish its prima facie case, and the denial of its cross motion was affirmed.

Reported in New York Official Reports at Mid Atl. Med., P.C. v Travelers Indem. Co. (2006 NY Slip Op 51579(U))

[*1]
Mid Atl. Med., P.C. v Travelers Indem. Co.
2006 NY Slip Op 51579(U) [12 Misc 3d 147(A)]
Decided on August 15, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 15, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570127/06.

Mid Atlantic Medical, P.C., a/a/o Jorge Lopez, Plaintiff-Respondent,

against

Travelers Indemnity Co. and Travelers Property Casualty Co., All d/b/a the Travelers, Defendants-Appellants.


Defendant appeals from so much of an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered February 3, 2006, as denied its cross motion for summary judgment.


PER CURIAM:
Order (Francis M. Alessandro, J.), entered February 3, 2006, affirmed, with $10 costs.

Defendant’s cross motion for summary judgment was properly denied. Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered (see 11 NYCRR 65-1.1 [d]), an insurer is precluded from asserting the defense of a provider’s untimely submission of proof of claim if it does not issue a timely denial of claim (see New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646 [2005]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2005]). Here, it is uncontroverted that plaintiff health care provider did not submit its proof of claim within the prescribed 45-day period. However, while defendant contends that it timely denied plaintiff’s claim, the affidavit of defendant’s claims representative submitted to establish proof of mailing neither stated that she actually mailed the denial to plaintiff nor described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., AD3d [2006], 814 NYS2d 687 {29 AD3d 547} ; Friedman v Allcity Ins. Co., 118 AD2d 517 [1986]).

We note that defendant’s reply affidavit may not be considered for the purpose of establishing prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006].

This constitutes the decision and order of the court.
Decision Date: August 15, 2006