Opinion
No. 2010–939 K C.
2012-11-26
UKON MEDICAL CARE, P.C. as Assignee of Robert Angelora, Appellant, v. CLARENDON NATIONAL INS. CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 8, 2009. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Present: RIOS, J.P., ALIOTTA and SOLOMON, JJ.
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 granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
The affidavit of defendant's claims division employee established that defendant had timely mailed ( 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] ) its denial of claim forms, which 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. The affidavit further stated that defendant had first learned of the accident when it had received a bill some two months after the accident, thereby [Slip Op. 2]demonstrating the lack of proper notice. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident in a timely manner. 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 (Insurance Department Regulations [11 NYCRR] §§ 65–1.1; 65–2.4[b] ), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact ( Jamaica Med. Supply, Inc. v. N.Y. City Tr. Auth., 36 Misc.3d 150[A], 2012 N.Y. Slip Op 51660[U] [App Term, 2d, 11th & 13th Jud Dists 2012] ). Plaintiff's remaining contentions lack merit.
Accordingly, the order is affirmed.