Bronx Expert Radiology, P.C. v Great N. Ins. Co.

[*1] Bronx Expert Radiology, P.C. v Great N. Ins. Co. 2009 NY Slip Op 51474(U) [24 Misc 3d 134(A)] Decided on July 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570144/08.

Bronx Expert Radiology, P.C. a/a/o Pedro Ruiz, Plaintiff-Respondent,

against

Great Northern Insurance Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), dated April 17, 2006, after a nonjury trial, in favor of plaintiff and awarding it judgment in the principal sum of $2,670.40.

Per Curiam.

Appeal from order (Fernando Tapia, J.) dated April 17, 2006, is deemed to be an appeal from a judgment (same court and Judge), entered September 6, 2006, and so considered, judgment reversed, with $25 costs, and the complaint dismissed.

In this action to recover first party no-fault benefits, plaintiff failed to meet its evidentiary burden of establishing a reasonable justification for the untimely submission of its claims to defendant. It is undisputed that the health services for which plaintiff seeks to recover no-fault benefits were rendered in November 2003 and that plaintiff did not submit its claims to defendant until March 16, 2004. Defendant denied the claims as untimely and afforded plaintiff the opportunity to submit written proof showing a "clear and reasonable justification" for its failure to comply with the statutory time frame for the filing of claims (see Matter of Medical Socy. Of State of NY v Serio, 100 NY2d 854 [2003]). The sole issue at trial was whether plaintiff had a reasonable justification for its delay in submitting the claims to defendant.

To the extent that plaintiff's trial proof showed that it mistakenly submitted the claims to the wrong insurer (Allstate Insurance Company) in December 2003, thus justifying its initial delay in submitting the claims to defendant (see 11 NYCRR 65-3.5[l]), its proof was insufficient to establish the date the claims were denied by Allstate or demonstrate a reasonable justification for the subsequent unexplained period of delay prior to submission of the claims to defendant (see NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). The trial court's contrary determination, insofar as it rested on a finding that defendant failed to show that it was prejudiced by plaintiff's untimely claims, was improper, since there is no authority in the No-Fault statute or regulations imposing such requirement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur

Decision Date: July 13, 2009