Acupuncture Works, P.C. v MVAIC

[*1] Acupuncture Works, P.C. v MVAIC 2010 NY Slip Op 50646(U) [27 Misc 3d 131(A)] Decided on April 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1756 K C.

Acupuncture Works, P.C. a/a/o DANIEL LOPEZ, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered July 17, 2008. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint on the ground that the action was barred by the statute of limitations. In support of its motion for summary judgment, plaintiff submitted an affidavit in which its owner alleged that defendant's denial of claim form, which plaintiff annexed to its moving papers, was a formal admission of receipt of the bills at issue by May 21, 2002, at the latest. Accordingly, the payment due date, as implicitly alleged by plaintiff in its motion, was no later than June 20, 2002, that is, 30 days after receipt of the claim (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). While a review of the record reveals that defendant may have initially tolled its time to pay or deny the claim by the issuance of a request for verification on June 10, 2002 (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]), the record does not contain any indication that defendant timely issued a follow-up verification request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). Furthermore, contrary to plaintiff's contention, MVAIC's denial of claim forms, dated April 30, 2003 and April 5, 2005, did not postpone the payment due date (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; see also Linden Med., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52188[U] [App Term, 2d & 11th Jud Dists 2008]).

Since plaintiff did not commence this action until April of 2006, it was barred by the three-year statute of limitations set forth in CPLR 214 (2) (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d 69; Boulevard Multispec Medical, P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip [*2]Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, defendant's cross motion for summary judgment dismissing the complaint was properly granted (Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d 69). In light of the foregoing, we need not reach plaintiff's contentions regarding its motion for summary judgment.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 09, 2010