Jamaica Med. Supply, Inc. v NY City Tr. Auth.

[*1] Jamaica Med. Supply, Inc. v NY City Tr. Auth. 2012 NY Slip Op 51660(U) Decided on August 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2815 K C.

Jamaica Medical Supply, Inc. as Assignee of WAYNE TANG, Appellant,

against

NY City Transit Authority, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010, deemed from a judgment of the same court entered August 6, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 7, 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 of the Civil Court which granted 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 affidavit of defendant's claims examiner established that defendant had timely mailed (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]) its denial of claim form, which denied plaintiff's claims on the ground that defendant had not received proper written notice of the accident within 30 days of the accident (see Insurance Department Regulations [11 NYCRR] § 65-2.4). The affidavit further [*2]demonstrated that defendant had first learned of the accident on the date it had received an NF-2 form, which had been submitted more than 30 days after the accident had occurred. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant's receipt of the NF-2 form. Despite having been informed by the denial of claim form that it had the opportunity to "submit[] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

We note that, contrary to plaintiff's contention, the denial of claim form's referrence to the "applicant" as the one who might provide justification for a late notice did not invalidate the denial of claim form, since "in some instances, [the Insurance Department] regulations use the term applicant' as a generic reference to both provider/assignees and injured persons" (East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 27, 2012