October 11, 2011

Park v Zurich American Ins. Co. (2011 NY Slip Op 51836(U))

Headnote

The court considered the issue of whether defendant's denial of claim forms were timely mailed and whether they advised the plaintiff that late submission of proofs of claim would be excused if a reasonable justification was provided. The main issue was whether defendant's motion for summary judgment dismissing the complaint should be granted. The court held that although the denial of claim forms were timely mailed, defendant failed to establish its entitlement to summary judgment as they did not advise the plaintiff that late submission of proofs of claim would be excused if a reasonable justification was provided. Therefore, the court reversed the order and denied defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Park v Zurich American Ins. Co. (2011 NY Slip Op 51836(U))

Park v Zurich American Ins. Co. (2011 NY Slip Op 51836(U)) [*1]

Park v Zurich American Ins. Co.

2011 NY Slip Op 51836(U) [33 Misc 3d 127(A)]

Decided on October 11, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1786 K C.

Jae Ook Park, M.D. as Assignee of YOON JUNG KIM, YOU SEON KIM-SHIN and SAE RO MI LEE, Appellant,
against
Zurich American Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 21, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, finding that defendant had established that the claims were not submitted within 45 days after the services had been rendered.

Contrary to plaintiff’s contention, the affidavit of defendant’s no-fault specialist sufficiently established that the denial of claim forms, which denied plaintiff’s claims on the ground that they had been submitted more than 45 days after the services at issue had been rendered (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), were timely mailed in accordance with defendant’s standard office practices and procedures (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]). However, as defendant did not demonstrate that its denial of claim forms advised plaintiff that late submission of the proofs of claim would be excused if plaintiff could provide a reasonable justification for the late submissions (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Delta Diagnostic Radiology, P.C. v [*2]Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011