March 15, 2013

Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth. (2013 NY Slip Op 50421(U))

Headnote

A provider sued the NYC Transit Authority for assigned first-party no-fault benefits, and the Civil Court denied the Authority's unopposed summary judgment motion. The Authority's claims examiner established timely mailing of the denial and that the claim was submitted more than 45 days after the services were rendered. The denial form stated the basis and advised that late submission would be excused with reasonable justification. The plaintiff's attorney said only that the claim was initially sent to the wrong carrier, without explaining why. The Appellate Term reversed and granted the Authority summary judgment dismissing the complaint.

Reported in New York Official Reports at Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth. (2013 NY Slip Op 50421(U))

[*1]
Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth.
2013 NY Slip Op 50421(U) [39 Misc 3d 128(A)]
Decided on March 15, 2013
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-2833 K C.

Norman Y. Schoenberg, M.D., P.C. as Assignee of ODELL MULLINGS, Respondent, —

against

N.Y.C. Transit Authority, Appellant.


Appeal 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.


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 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [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 [*2]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 NY Slip Op 50449[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 15, 2013