Aminov v Travelers Prop. Cas. Ins. Co.

[*1] Aminov v Travelers Prop. Cas. Ins. Co. 2010 NY Slip Op 51723(U) [29 Misc 3d 127(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-881 K C.

Lev Aminov, M.D. as Assignee of Kareen Cohn, Appellant,

against

Travelers Property Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 13, 2009. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits for medical services provided from October 7, 2004 through December 29, 2004, defendant moved for summary judgment dismissing the complaint on the ground that it never received the claim forms and, as a result, the claim forms were not submitted within "180 days" after the services were provided (see former Insurance Department Regulations [11 NYCRR] § 65.12). In opposition, plaintiff argued that defendant must have received the claim forms since it knew the dates that the medical services were rendered as well as the total amount of the claims. The Civil Court granted defendant's motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

We note at the outset that while defendant argued that plaintiff did not submit its claim forms within 180 days after the medical services were provided, since the medical services were provided from October 7, 2004 through December 29, 2004, plaintiff was actually required to submit its claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [effective April 5, 2002]).

Upon a review of the record, we are of the opinion that defendant did not make a prima facie showing of its entitlement to judgment as a matter of law. While the complaint listed the [*2]total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Accordingly, the order granting defendant's motion for summary judgment dismissing the complaint is reversed and defendant's motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010