Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50417(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 14, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 14, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by both defendant and plaintiff established that plaintiff’s assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not “regularly reside[]” with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff’s 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]) on this ground. In any [*2]event, even if defendant’s denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Moreover, it is undisputed that plaintiff submitted the claim at issue to defendant more than 45 days after the dates the services were rendered (Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff’s contention, defendant’s timely denial of claim form adequately advised plaintiff of the basis for the denials. The denial of claim form further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Accordingly, the judgment of the Civil Court is affirmed.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012