T & M Rehab PT, P.C. v Unitrin Auto & Home Ins. Co. (2012 NY Slip Op 52407(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 (Jodi Orlow, J.), entered January 3, 2011. The order denied plaintiff’s motion for leave to renew its prior motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, by order entered July 29, 2010, the Civil Court granted plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint to the extent of finding that plaintiff had “established its prima facie case in that the subject bills were timely submitted and remain unpaid” and defendant had “established that it timely denied the subject bills,” and that “[t]here remains a triable issue of fact as to the medical necessity of the services rendered. The parties shall proceed to trial on this issue only.” Thereafter, by order entered January 3, 2011, the Civil Court denied plaintiff’s subsequent motion, pursuant to CPLR 2221 (e) (2), for leave to renew its prior motion for summary judgment on the ground that the holding in Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) created new law which required an insurer to issue denial of claim [*2]forms in duplicate. Plaintiff appeals from the latter order.

The Civil Court properly denied plaintiff’s motion for leave to renew since the holding of Excel Imaging, P.C. did not constitute a change in the law (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012