Healthway Med. Care, P.C. v Country Wide Ins. Co.

[*1] Healthway Med. Care, P.C. v Country Wide Ins. Co. 2015 NY Slip Op 51654(U) Decided on November 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-891 Q C

Healthway Medical Care, P.C. as Assignee of MARCUS HIPPOLYTE, Appellant,

against

Country Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 4, 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

The affidavit of defendant's no-fault litigation supervisor submitted in support of defendant's cross motion established that defendant had timely mailed its denial of claim forms in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), which forms denied the claims on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident. Defendant's cross-moving papers further demonstrated that defendant had first learned of the accident more than 30 days after it had occurred. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. Despite being informed by the denial of claim forms that it had the opportunity to "submit[] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (11 NYCRR 65-1.1; 65-2.4), plaintiff did not present any evidence that it had availed itself of the opportunity or that it had given timely notice.

Accordingly, the order is affirmed.

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

Decision Date: November 12, 2015