Five Boro Psychological Servs., P.C. v MVAIC

[*1] Five Boro Psychological Servs., P.C. v MVAIC 2012 NY Slip Op 51656(U) Decided on August 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2156 K C.

Five Boro Psychological Services, P.C. as Assignee of IRIS RODRIGUEZ, Appellant, - -

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 2, 2009. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days after the services at issue had been rendered (see Insurance Department Regulations [11 NYCRR] § 65-1.1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Nir v MVAIC, 17 Misc 3d 134[A], [*2]2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]) and that plaintiff did not do so. MVAIC's denial of plaintiff's claim, based upon its untimely submission, also informed plaintiff that it could excuse the delay if plaintiff provided "written justification" for the delay (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Nir, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U]). In opposition to MVAIC's motion for summary judgment, plaintiff did not establish that it had provided MVAIC with a written justification for its untimely submission of the claim form. As plaintiff's remaining contentions are either improperly raised for the first time on appeal or lack merit, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012