Schottenstein Pain & Neuro, PLLC v MVAIC

[*1] Schottenstein Pain & Neuro, PLLC v MVAIC 2021 NY Slip Op 50643(U) Decided on July 2, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1021 K C

Schottenstein Pain & Neuro, PLLC, as Assignee of Robert Melvin, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered May 23, 2019. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied the branch of MVAIC's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016.

It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016 (see 11 NYCRR 65-1.1; Synergy First Med., PLLC v MVAIC, 44 [*2]Misc 3d 127[A], 2014 NY Slip Op 50964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]) and that plaintiff did not do so. MVAIC timely denied plaintiff's claims seeking to recover for those services, based upon plaintiff's untimely submission, and informed plaintiff that MVAIC could excuse the delay if plaintiff provided "reasonable justification" for the delay (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Synergy First Med., PLLC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U]). In opposition to MVAIC's motion for summary judgment, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the information it had regarding the insurance company was incorrect, it sent the subject claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the subject claims to that insurance company, given that plaintiff had, on February 8, 2016, submitted a claim for services rendered on January 13, 2016 to MVAIC, nor did plaintiff establish that, after learning that the subject claims were to be submitted to MVAIC, plaintiff did so within a reasonable period of time. As a result, plaintiff did not establish that it had provided MVAIC with a "reasonable justification" for its untimely submission to MVAIC of the claim forms seeking to recover for services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016.

Contrary to defendant's contention in its brief, the order from which defendant appeals granted the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered on October 26, 2015.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered on February 12, 2016, March 15, 2016, March 16, 2016, April 20, 2016, and May 27, 2016 is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021