AAA Chiropractic, P.C. v MVAIC

[*1] AAA Chiropractic, P.C. v MVAIC 2010 NY Slip Op 51896(U) [29 Misc 3d 131(A)] Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 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
2009-916 K C.

AAA Chiropractic, P.C. as Assignee of DONOVAN GREAVES, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered February 17, 2009. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to compel defendant to respond to plaintiff's discovery demands.

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 (sued herein as MVAIC) moved for summary judgment on the ground that plaintiff's claim forms were submitted more than 45 days after the services were rendered. Plaintiff cross-moved to compel defendant to respond to plaintiff's discovery demands. The Civil Court granted defendant's motion for summary judgment, finding that plaintiff had failed to show a reasonable justification for the late submission of its claim forms, and denied plaintiff's cross motion. The instant appeal by plaintiff ensued.

It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services at issue were rendered and that plaintiff did not do so (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]). MVAIC's denial of plaintiff's claims, based upon their untimely submission, also informed plaintiff that MVAIC could excuse the delay if plaintiff provided "written 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]). In opposition to MVAIC's motion for summary judgment, plaintiff did not establish that it had provided MVAIC with a written justification for its untimely submission of the claim forms. Consequently, defendant established its entitlement to judgment as a matter of law (see AR Med. Rehabilitation, P.C. v MVAIC, 27 Misc 3d 135[A], 2010 NY Slip Op 50828[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

While plaintiff contends that the Civil Court erred in granting defendant's motion for summary judgment and denying its cross motion to compel defendant to respond to plaintiff's discovery demands, plaintiff's bald conclusory assertion that defendant should be compelled to respond to plaintiff's discovery demands because it could not adequately oppose defendant's motion for summary judgment without said discovery responses (see CPLR 3212 [f]) was insufficient "to demonstrate that discovery was needed in order to show the existence of a triable issue of fact" (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Indeed, any proof needed to establish a reasonable justification for plaintiff's failure to submit its claim forms to defendant in a timely manner would already be in plaintiff's possession. Accordingly, the order is affirmed.

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