Great Health Care Chiropractic, P.C. v Elrac, Inc.

[*1] Great Health Care Chiropractic, P.C. v Elrac, Inc. 2015 NY Slip Op 51223(U) Decided on August 5, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-738 Q C

Great Health Care Chiropractic, P.C. as Assignee of SERGO PREMPIN, Appellant,

against

Elrac, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 27, 2013. 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 $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the bills at issue had been timely denied based upon the failure of plaintiff's assignor and/or plaintiff to comply with 11 NYCRR 65-2.4 (a) and (b), which make it a condition precedent to coverage to provide written notice of an accident "as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation."

Defendant alleged in its cross motion that it had first received notice of the accident on July 7, 2010 from plaintiff's assignor's attorney, and that this was more than 30 days after the date of the accident, which had occurred on June 6, 2010. In opposition to defendant's cross motion, plaintiff submitted an affidavit by Jean Claude Compas, who stated that he had personally timely mailed, by certified mail, an NF-2 application for no-fault benefits together with a notice of injury to defendant on July 6, 2010. He alleged, with regard to mailing, that he personally takes all envelopes in the office to the post office and presents them to the clerk to be weighed and to determine the correct postage, and that he purchases the postage at that point. Plaintiff also submitted a "Track & Confirm" search result indicating that the envelope had been delivered to defendant, but did not submit the certified mail receipt indicating the date on which the envelope had been brought to the post office. In reply papers in further support of its cross motion, defendant submitted a photocopy of the envelope bearing a certified mail number which matches the certified mail number alleged by Dr. Compas to be the certified mail number under which the NF-2 and notice of injury had been mailed. Both the postage and the postmark are dated July 7, 2010.

In its brief, plaintiff concedes "the fact that the envelope was postmarked by the Post Office on July 7," but argues that it was mailed on July 6, 2010. However, this is not a case where a mailing was timely because the envelope was timely dropped into a mail box, even though it was not delivered to the post office and postmarked until a date beyond the prescribed time period (see CPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Rather, plaintiff's own affidavit establishes that the NF-2 and notice of injury were delivered directly to a clerk at the post office for postage and mailing. Both the postage and the postmark are dated July 7, 2010, conclusively establishing that the documents were not mailed until that date. Therefore, they were not submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b).

Plaintiff also argues that defendant failed to prove that it had timely denied the bills. However, defendant submitted an affidavit by an employee of its third-party administrator, which affidavit sufficiently established the timely mailing of the denial of claim forms (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, the denial of claim forms advised plaintiff that the late notice of claim would "be excused should the applicant or the assignee provide reasonable justification for the failure to give timely notice." Defendant has established that no such justification was provided. Thus, we reject plaintiff's argument, based upon Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), that, even if the submission of the notice of the accident was untimely by one day, such untimeliness is de minimis and should be excused. Consequently, as defendant timely denied the bills on the ground that there was a failure to comply with a condition precedent to coverage (see 11 NYCRR 65-2.4 [a], [b]), plaintiff's motion for summary judgment was properly denied and defendant's cross motion for summary judgment was properly granted.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 05, 2015