Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co.

[*1] Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co. 2010 NY Slip Op 50449(U) [26 Misc 3d 145(A)] Decided on March 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-287 K C.

Prestige Medical & Surgical Supply, Inc. a/a/o Michael Martin, Appellant,

against

Chubb Indemnity Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered January 3, 2008. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the claim on the ground that plaintiff had failed to submit the claim within 45 days after the date the supplies at issue had been provided to its assignor. Insofar as is relevant to this appeal, plaintiff opposed defendant's motion for summary judgment on the ground that defendant had waived reliance on the 45-day rule because it had failed to advise plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that the untimely submission of a claim would be excused where the applicant provided reasonable justification for its failure to give timely notice of the claim. The Civil Court granted defendant's motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

The affidavit of defendant's claims adjuster sufficiently established the timely mailing of the denial of claim form, since the affidavit described in detail defendant's standard office practices or procedures used to ensure that the denial was properly addressed and mailed (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]). Defendant denied the claim on the ground that plaintiff's submission of the claim was untimely. The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim [*2]was denied by another insurance carrier, plaintiff failed to proffer any explanation as to why it first submitted the claim to the other insurance carrier. As a result, plaintiff failed to provide defendant with a reasonable justification for plaintiff's untimely submission of the claim to defendant (see St. Vincent's Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; 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]). Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010