Opinion
2013-13 Q C
10-23-2015
Barry G. Fisher, M.D., P.C. as Assignee of HELEN ROBERTS, Respondent, October 23, 2015 v. New York City Transit Authority, Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 5, 2012. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint and granted the branch of defendant's motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012.
ORDERED that so much of the appeal as is from the portion of the order that granted the branch of defendant's motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012 is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, is reversed, with $25 costs, and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant's motion seeking summary judgment dismissing the complaint and granted the branch of defendant's motion seeking to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012.
The affidavit of defendant's claims examiner established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). Furthermore, defendant's denial of claim form advised plaintiff that the late submission of the claim would be excused if plaintiff provided reasonable justification for the lateness (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition to defendant's motion, plaintiff submitted an affidavit by its billing manager and annexed exhibits to its papers which were insufficient to establish that plaintiff had mailed its claim form within 45 days of the treatment at issue, and plaintiff presented no evidence that it had provided "clear and reasonable justification" for failing to timely submit its claim form (11 NYCRR 65-2.4 [c], 65-3.3 [e]). Thus, defendant was entitled to summary judgment.
Accordingly, so much of the appeal as is from the portion of the order that granted the branch of defendant's motion seeking, in the alternative, to stay the accrual of statutory interest from the commencement of the action only to the extent of staying the accrual of interest from December 14, 2011 through October 5, 2012 is dismissed as academic, and the order, insofar as reviewed, is reversed and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: October 23, 2015