Alba Med. Supply, Inc. v Motor Veh. Acc. Indem. Corp.

[*1] Alba Med. Supply, Inc. v Motor Veh. Acc. Indem. Corp. 2010 NY Slip Op 50372(U) [26 Misc 3d 141(A)] Decided on March 8, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-1679 K C.

Alba Medical Supply, Inc. a/a/o Houdou Conte, Appellant,

against

Motor Vehicle Accident Indemnification Corporation, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 15, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff's claim was submitted more than 45 days after the supplies at issue were furnished. Plaintiff opposed the motion, arguing that it had a reasonable excuse for submitting the claim form to MVAIC more than 45 days after the supplies at issue were furnished. The Civil Court granted MVAIC's motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days after the supplies at issue were furnished (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Nir v MVAIC, 17 Misc 3d 134[A], 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 the untimely submission also informed plaintiff that it could excuse the delay if plaintiff provided "reasonable 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]). Plaintiff asserts that it sent the claim form to MVAIC more than 45 days after the supplies were furnished because it had first sent the claim to an insurer which had disclaimed coverage. However, plaintiff does not explain why plaintiff's counsel, who submitted the claim [*2]form on plaintiff's behalf, waited more than 45 days after learning of the disclaimer before submitting the claim form to MVAIC. Consequently, plaintiff failed to proffer a reasonable justification for its untimely submission of the claim form to MVAIC. As plaintiff's remaining contentions lack merit (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]; see also Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]), the order granting MVAIC's motion for summary judgment dismissing the complaint is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010