Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y.

[*1] Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y. 2018 NY Slip Op 51644(U) Decided on November 16, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1395 K C

Island Life Chiropractic, P.C., as Assignee of Powell, Jason, Respondent,

against

Erie Insurance Company of New York, Appellant.

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 30, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 it had timely denied the claim at issue based on plaintiff's failure to submit the claim to defendant within 45 days of the date the services had been rendered. The Civil Court denied defendant's motion but made, in effect, CPLR 3212 (g) findings that defendant's denial of claim form had been timely and proper, and that the sole issue for trial was defendant's defense that the claim had not been timely submitted.

Contrary to defendant's sole contention on appeal, the affidavit of plaintiff's owner was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant. Consequently, defendant did not establish, as a matter of law, that plaintiff had failed to comply with the regulation requiring submission of claims within 45 days of the services rendered (see 11 NYCRR 65-1.1).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018