Nir v MVAIC

[*1] Nir v MVAIC 2007 NY Slip Op 52124(U) [17 Misc 3d 134(A)] Decided on June 29, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-856 K C.

Jacob Nir, M.D. as assignee of CHARISSE WIGGINS-LENS, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 20, 2006. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment on the ground that plaintiff's claim was submitted more than 45 days after the services were rendered. The court denied both motions, finding that a question of fact exists concerning the justification for plaintiff's untimely submission of its claim. MVAIC appeals from the denial of its cross motion.

Pursuant to Insurance Law § 5221 (b) (3), MVAIC "shall have only those rights and obligations which are applicable to an insurer subject to article [51 of the Insurance Law]" (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004]). As a result, plaintiff was required to submit its claim to MVAIC within 45 days of the date on which the services were rendered (see 11 NYCRR 65-1.1; NY Arthroscopy & Sports Medicine [*2]PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). It is undisputed that plaintiff submitted its claim more than 45 days after services were rendered to plaintiff's assignor and that MVAIC's denial of plaintiff's claim based upon the untimely submission also informed plaintiff that it could excuse the delay if plaintiff provided "reasonable justification" for the delay (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862-863 [2003]). The record further reveals that, in opposition to MVAIC's cross motion seeking summary judgment, plaintiff failed to proffer admissible evidence demonstrating that there was a "reasonable justification" for the submission of the claim more than 130 days after the services were rendered. Accordingly, defendant's cross motion for summary judgment
should have been granted (see NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, supra).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 29, 2007