October 8, 2013

Delta Diagnostic Radiology, P.C. v Mvaic (2013 NY Slip Op 51733(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits, and the Civil Court, Kings County, granted MVAIC summary judgment dismissing the complaint. MVAIC's motion rested on a timely denial of the claim because the plaintiff had not submitted written proof of claim within 45 days of the services under 11 NYCRR 65-1.1. The Appellate Term, Second Department, held that MVAIC established a timely denial. It also held that the plaintiff could not rely on a need for discovery under CPLR 3212(f) because the discovery sought was not essential, and that the plaintiff raised no triable issue of fact. The order was affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Mvaic (2013 NY Slip Op 51733(U))

[*1]
Delta Diagnostic Radiology, P.C. v Mvaic
2013 NY Slip Op 51733(U) [41 Misc 3d 129(A)]
Decided on October 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2357 K C.

Delta Diagnostic Radiology, P.C. as Assignee of PASCHAL NWAKUNA, Appellant, —

against

MVAIC, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 1, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.


ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Defendant’s motion for summary judgment was based upon its timely denial of plaintiff’s claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff’s argument on appeal, defendant established that it had timely denied the claim (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]). Furthermore, plaintiff cannot rely upon the need for discovery to defeat defendant’s motion for summary judgment (see CPLR 3212 [f]), as the discovery plaintiff seeks is not essential to justify opposition to the motion. Finally, plaintiff has not demonstrated the existence of a triable issue of fact to defeat defendant’s prima facie showing of its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013