Excel Imaging, P.C. v MVAIC

[*1] Excel Imaging, P.C. v MVAIC 2010 NY Slip Op 50998(U) [27 Misc 3d 141(A)] Decided on June 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-1140 K C.

Excel Imaging, P.C. as assignee of CECIL GODDARD, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered February 9, 2009. The order, insofar as appealed from, denied 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to timely submit its claim. Plaintiff opposed defendant's motion and cross-moved for summary judgment, arguing that it had previously proffered a reasonable excuse for the delay in submitting the claim to MVAIC and that defendant failed to prove that it had sent its denial of claim form in duplicate. The Civil Court denied MVAIC's motion and plaintiff's cross motion, finding that issues of fact exist. MVAIC appeals from so much of the order as denied its motion for summary judgment, claiming that it demonstrated its entitlement to judgment as a matter of law. In response, plaintiff contends that the order, insofar as appealed from, should be affirmed, as triable issues exist regarding, among other things, whether the denial of claim form had been issued in duplicate.

Upon a review of the record, we agree with the Civil Court's determiFnation that MVAIC is not entitled to summary judgment. In New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (32 AD3d 458, 460 [2006]), the Appellate Division, Second Department, held, in relevant part:
"Here, the defendants' September 28, 2004, letter adequately conveyed the information mandated by the prescribed form including, but not limited to, the precise ground on which the partial denial was predicated. However, the defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance (see 11 NYCRR 65-3.8 [c] [1], supra). Accordingly, having failed to pay or properly deny that [*2]portion of the hospital's claim within the statutory time frame, the defendants were precluded from interposing a defense (Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., supra), and the Supreme Court should have granted the plaintiff's motion for summary judgment on the second cause of action" (emphasis added).
In view of the foregoing, the order, insofar as appealed from, is affirmed, as issues of fact exist (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]; New York Univ. Hosp. Rusk Inst. (32 AD3d at 460).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010