November 15, 2012

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U))

Headnote

The court considered the evidentiary proof submitted by the defendant, which established that the action for assigned first-party no-fault benefits was premature as it was commenced less than 30 days after the plaintiff's service of the claim. The main issue decided was whether the action for assigned first-party no-fault benefits was premature. The holding of the court was that defendant's motion was granted in its entirety and the complaint was dismissed, as the plaintiff's assertion that it mailed the claim to the defendant in March 2010 was insufficient to raise a triable issue, since the record showed that the claim related to services rendered on a different date than that set forth in the claim at issue in the case. Therefore, the court found in favor of the defendant and dismissed the complaint.

Reported in New York Official Reports at Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U))

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U)) [*1]

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 52114(U) [37 Misc 3d 135(A)]

Decided on November 15, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
.

Diagnostic Chiropractic Specialities, P.C. a/a/o Seymore Newman, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Ins. Co., Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 10, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 10, 2012, insofar as appealed from, reversed, without costs, defendant’s motion granted in its entirety and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The evidentiary proof submitted by defendant established, prima facie, that this action for assigned first-party no-fault benefits was premature, since it was commenced less than 30 days after plaintiff’s March 11, 2011 service of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007]). In opposition, plaintiff’s assertion that it mailed the claim to defendant in March 2010 was insufficient to raise a triable issue, since the record shows that the March 2010 claim related to services that were rendered on a date different than that set forth in the claim at issue in the case at bar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 15, 2012