Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Reported in New York Official Reports at Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Civil Court of the City of New York, Richmond County

Decided on July 2, 2026

Index No. CV-720612-25/RI

Robert J. Helbock, J.

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment is as follows:

Plaintiff, Maxim Orthopaedics PLLC (hereafter referred to as “Plaintiff”), as assignee of Brigido Umana (hereafter referred to as “Assignor”), commenced this action against the defendant, MVAIC (hereafter referred to as “Defendant”), to recover assigned first-party automobile insurance (hereafter referred to as “No-Fault”) benefits for medical treatment provided to the Assignor.

The Defendant moves for an order (i) pursuant to CPLR 3013, 3212(b), and 3211(a)(1), granting summary judgment on the ground that the bills were timely and properly denied, and (ii) for such other relief as the Court deems appropriate. Plaintiff submitted opposition to the motion by way of a cross-motion, discussed below. Defendant submitted an affirmation in reply to the initial motion and in opposition to Plaintiff’s cross-motion. The motion was argued, and the Court reserved decision.

The underlying claims concern eight bills submitted by Plaintiff for services rendered to the Assignor. It is undisputed that five of the bills were submitted after the 45-day time frame prescribed by 11 N.Y.C.R.R. §65-1.1.^FN1 The Defendant alleges that it never received three of the eight bills. The bills are outlined below:

Bill received May 24, 2024, for date of service January 11, 2024, in the amount of $198.28,

Bill received November 1, 2024, for date of service March 28, 2024, in the amount of $70.24,

Bill received November 1, 2024, for date of service April 23, 2024, in the amount of $412.72,

Bill received November 1, 2024, for date of service June 18, 2024, in the amount of $75.00,

Bill received November 1, 2024, for date of service July 16, 2024, in the amount of [*2]$75.00,

The five bills described above are collectively referred to hereafter as the “Late Bills”

Bill allegedly not received for date of service April 16, 2024, in the amount of $70.24

Bill allegedly not received for date of service April 23, 2024, in the amount of $3,857.19

Bill allegedly not received for date of service May 21, 2024, in the amount of $75.00

Late Bills Discussion

Each of the Late Bills were submitted after the 45-day requirement set forth in 11 N.Y.C.R.R. §65-1.1. Defendant argues that because these bills were submitted in violation of the regulation, its denials were timely and proper. Plaintiff, in opposition, argues that Defendant failed to conduct a supervisory review of the claim to determine whether there was any reasonable justification for the delay. Plaintiff contends that the bills were initially sent to Geico in error and were later sent to MVAIC upon learning it was the proper carrier.

The Supreme Court, Appellate Term has held that MVAIC may establish its prima facie entitlement to summary judgment by submitting evidence showing that it denied plaintiff’s no-fault claims as untimely because they were submitted more than 45 days after services were rendered; that its denials informed plaintiff that MVAIC would excuse the delay if plaintiff provided a “reasonable justification” for the late submission; and that plaintiff did not submit any additional materials in response to the denials (Carniol v. MVAIC, 62 Misc 3d 148[A] [NY App. Term. 2019], citations omitted). Cover letters stating that claims were initially sent to another carrier do not constitute justification for late submission to MVAIC; there must be an explanation for why the claims were first submitted elsewhere and/or proof that, after learning MVAIC was the proper carrier, the claims were submitted within a reasonable time (Id).

Here, each of the Late Bills were submitted more than 45 days after the services were rendered. Each denial informed the Assignor that late submission would be excused if a reasonable justification was provided.^FN2 There is nothing before the Court to demonstrate that any additional materials were submitted in response to these denials. Accordingly, the Court finds that Defendant has met its prima facie burden for summary judgment with respect to each of the Late Bills.

Plaintiff, in turn, fails to raise a triable issue of fact. The cover letters do not explain why the claims were initially sent to Geico, nor do they state when Plaintiff learned that MVAIC was the proper carrier. Moreover, even viewing the facts in the light most favorable to Plaintiff and assuming Plaintiff learned that MVAIC was the proper carrier on April 25, 2024 (the date of the cover letter attached to the first bill), at least two of the bills were sent to Geico after that date.

Therefore, Defendant’s motion for summary judgment is granted with respect to each of the Late Bills.

Bills Allegedly Not Received

The Defendant alleges non-receipt of three of the bills in suit, which the Plaintiff in opposition alleges were mailed.

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Progressive Cas. Ins. Co. v. Metro Psychological [*3]Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 114 AD3d 33, 36 [2d Dept 2013], aff’d, 25 NY3d 498, 35 N.E.3d 451 [2015]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Progressive at 694, citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 679 [2 Dept 2001]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive at 694). To establish proper mailing, the movant must present proof of mailing that includes a description of the process that identifies the documents, how the envelope is addressed by the automated system or employee to insure the address is correct, “how and when the envelopes, once sealed, weighed and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier to be delivered” (Progressive Cas. Ins. Co. v. Infinite Ortho Prods., Inc., 127 AD3d 1050, 1052 [2d Dept 2015]).

The Court has reviewed the proof of mailing stamped by the USPS as well as the affidavit of Marina Prosalova, billing administrator for the Plaintiff, offered by the Plaintiff. These required elements were provided in Ms. Prosalova’s affidavit. Therefore, Ms. Prosalova’s affidavit sufficiently establishes, as a matter of law, that the bills were timely and properly mailed to the Defendant.

With regards to these bills, Plaintiff has “made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Inc. Co., 5 AD3d 742 [2d Dept 2004] citing Insurance Law §5196[a]; 11 NYCRR 65.15[g][3]; St Luke’s Roosevelt Hosp. V American Tr. Inc. Co., 1 AD3d 498 [2nd Dept., 2003]).

The Defendant has failed to rebut Plaintiff’s prima facie showing. Therefore, the Plaintiff’s cross-motion for summary judgment is granted with respect to each of these bills, to the extent the Plaintiff has established its prima facie burden of proof.

Conclusion

Accordingly, it is hereby:

ORDERED, that Defendant’s Motion for Summary Judgment is GRANTED and the causes of action for the bills for the dates of service of: January 11, 2024, March 28, 2024, April 23, 2024, June 18, 2024 and July 16, 2024 are dismissed, and Plaintiff’s Cross-Motion for Summary Judgment for those bills is DENIED, but as to the remaining bills; and it is further

ORDERED, that Defendant’s Motion for Summary Judgment is DENIED and Plaintiff’s Cross-Motion for Summary Judgment is GRANTED to the extent the Plaintiff has met its prima facie burden of proof regarding the bills for dates of services May 21, 2024, in the amount of $75.00; April 23, 2024, in the amount of $3,857.19; and April 16, 2024, in the amount of $70.24 and it is further

ORDERED, that the matter is referred to trial regarding the affirmative defenses raised by the Defendant to the remaining bills.

This is the Decision and Order of the Court.