Compas Med., P.C. v ELRAC, Inc.

[*1] Compas Med., P.C. v ELRAC, Inc. 2016 NY Slip Op 51497(U) Decided on October 11, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2705 Q C

Compas Medical, P.C., as Assignee of Daniel Joseph, Appellant,

against

ELRAC, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 19, 2013. The order granted defendant's 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, defendant moved for summary judgment dismissing the complaint on the ground that the claims at issue had been timely denied based upon the failure of plaintiff's assignor and/or plaintiff to provide timely written notice of the accident at issue (see 11 NYCRR 65-2.4 [a], [b]). The Civil Court granted defendant's motion.

Contrary to plaintiff's argument, defendant conclusively established that the documents providing notice of the subject accident had not been mailed until July 7, 2010, by submitting a photocopy of the envelope in which defendant first received the documents, on which both the postage and the postmark are dated July 7, 2010, and that they therefore had not been submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b) (cf. CPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Consequently, neither plaintiff nor plaintiff's assignor complied with a condition precedent to coverage (see 11 NYCRR 65-2.4 [a], [b]).

Plaintiff also argues that defendant failed to prove that it had timely denied the claims. 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]). 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" (see 11 NYCRR 65-3.3 [e]; Radiology Today, P.C. v Citiwide Auto Leasing Inc., 15 Misc 3d 92 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant established that no such justification was provided. Thus, defendant's motion for summary judgment dismissing the complaint was properly granted (see Great Health Care Chiropractic, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51223[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

Decision Date: October 11, 2016