Bronx Expert Radiology v Clarendon Natl. Ins. Co

[*1] Bronx Expert Radiology v Clarendon Natl. Ins. Co 2009 NY Slip Op 50747(U) [23 Misc 3d 133(A)] Decided on April 20, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570085/08

Bronx Expert Radiology a/a/o Manuel Castillo, Plaintiff-Respondent,

against

Clarendon National Insurance Co, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 4, 2007, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 4,
2007, affirmed, with $10 costs.

Although plaintiff's claim for no-fault benefits was concededly submitted to defendant beyond the 45-day statutory period (see 11 NYCRR 65-1.1), the record shows that plaintiff's claim submission included correspondence attempting to explain its delay in filing. Under the regulations, an insurer must not only provide a claimant the opportunity to submit a reasonable justification for any late notice (see 11 NYCRR 65-3.3[a]), but must also establish procedures to "ensure due consideration of denial of claims based upon late filings" and must give "appropriate consideration for situations where the claimant has difficulty ascertaining the insurer's identity or inadvertently submits a claim to the incorrect insurer" (Matter of Medical Socy. of the State of New York v Serio, 100 NY2d 854, 863 [2003]). Inasmuch as the record does not indicate whether defendant gave any consideration to plaintiff's explanation for its tardy submission as required by the regulations, we sustain the denial of defendant's motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 20, 2009