Opinion
570591/04.
Decided May 11, 2006.
Plaintiff appeals from an order of the Civil Court, Bronx County (Irving Rosen, J.), dated July 29, 2004, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Order (Irving Rosen, J.), dated July 29, 2004, modified to deny defendant's motion for summary judgment and to grant plaintiff's cross motion for summary judgment to the extent of awarding plaintiff the principal amount of $605.16, and as so modified, affirmed, without costs.Plaintiff commenced this action to recover first party no-fault benefits in the sum of $6,406.53 for health care services rendered to its assignor. Defendant moved for summary judgment dismissing the complaint on the grounds that (1) plaintiff's claim in the sum of $5,801.37 for health services rendered between May 3 and June 16, 2000, which defendant acknowledged receiving on December 15, 2000, were properly denied because plaintiff failed to timely submit the claim within the 180-day period prescribed by the insurance regulations, and (2) the remaining claims in the total sum of $605.16 were timely denied for noncompliance with the appropriate fee schedules. Plaintiff cross-moved for summary judgment in its favor, arguing, inter alia, that it had timely submitted the claim in the sum of $5,801.37 within the 180-day period.
PRESENT: McCOOE, J.P., SCHOENFELD, J.
The insurance regulations in effect at the time plaintiff submitted its claims provided that proof of claim for no-fault benefits shall be submitted to the insurer "as soon as reasonably practicable but in no event later than 180 days after the date services are rendered or 180 days after the date written notice was given to the Company, whichever is later" ( see 11 NYCRR 65.12 [e]) (emphasis added). Pursuant to the insurance regulations, the written notice of claim requirement may be satisfied by an NF-2 application form ( see 11 NYCRR 65.15 [b][4], now 11 NYCRR 65-3.3[d]).
While it is undisputed that the $5,801.37 claim was submitted more than 180 days after the services were rendered, the record is inconclusive as to whether the proof of claim was timely submitted within the 180-day period after written notice was give to defendant, thereby precluding summary judgment as to the $5,801.37 claim. There is a question of fact as to the date defendant received the July 17, 2000 NF-2 form. Although, in response to plaintiff's interrogatory, defendant attached a copy of the NF-2 form and admitted receipt thereof, it never admitted the date of receipt. The July 20, 2000 perforated date on the form is insufficient to establish the date of receipt.
With respect to the remaining claims in the sum of $605.16, defendant failed to demonstrate by competent evidentiary proof that they were in excess of the appropriate fee schedules. Plaintiff thus, is entitled to summary judgment in the amount of $605.16.
Accordingly, defendant's summary judgment motion is denied, plaintiff's cross motion for summary judgment is granted on the claims totaling $605.16, and the matter is remanded to Civil Court for further proceedings.
This constitutes the decision and order of the court.