October 23, 2015

Barry G. Fisher, M.D., P.C. v New York City Tr. Auth. (2015 NY Slip Op 51566(U))

Headnote

A provider sued New York City Transit Authority for assigned first-party no-fault benefits, and the Civil Court denied the defendant's motion for summary judgment and partly stayed the accrual of interest. The defendant's claims examiner established timely mailing of a denial on the ground that the provider failed to submit proof of claim within 45 days of services under 11 NYCRR 65-2.4(c) and 65-3.3(e), and the denial form told the provider that lateness would be excused on reasonable justification. The Appellate Term, Second Department held that the provider's billing manager affidavit and exhibits did not show timely mailing or any clear and reasonable justification for lateness. The order was reversed and the complaint dismissed, and the appeal from the interest ruling was dismissed as academic.

Reported in New York Official Reports at Barry G. Fisher, M.D., P.C. v New York City Tr. Auth. (2015 NY Slip Op 51566(U))

[*1]
Barry G. Fisher, M.D., P.C. v New York City Tr. Auth.
2015 NY Slip Op 51566(U) [49 Misc 3d 139(A)]
Decided on October 23, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-13 Q C

Barry G. Fisher, M.D., P.C. as Assignee of HELEN ROBERTS, Respondent, October 23, 2015

against

New York City Transit Authority, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 5, 2012. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted the branch of defendant’s motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012.

ORDERED that so much of the appeal as is from the portion of the order that granted the branch of defendant’s motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012 is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is reversed, with $25 costs, and the branch of defendant’s motion seeking 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted the branch of defendant’s motion seeking to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012.

The affidavit of defendant’s claims examiner established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). Furthermore, defendant’s denial of claim form advised plaintiff that the late submission of the claim would be excused if plaintiff provided reasonable justification for the lateness (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition to defendant’s motion, plaintiff submitted an affidavit by its billing manager and annexed exhibits to its papers which were insufficient to establish that plaintiff had mailed its claim form within 45 days of the treatment at issue, and plaintiff presented no evidence that it had provided “clear and [*2]reasonable justification” for failing to timely submit its claim form (11 NYCRR 65-2.4 [c], 65-3.3 [e]). Thus, defendant was entitled to summary judgment.

Accordingly, so much of the appeal as is from the portion of the order that granted the branch of defendant’s motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012 is dismissed as academic, and the order, insofar as reviewed, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Elliot, JJ., concur.


Decision Date: October 23, 2015