Opinion
2012-11-15
DIAGNOSTIC CHIROPRACTIC SPECIALITIES, P.C., a/a/o Seymore Newman, Plaintiff–Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INS. CO., Defendant–Appellant.
Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 10, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.
Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Donald A. Miles, J.), entered January 10, 2012, insofar as appealed from, reversed, without costs, defendant's motion granted in its entirety and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The evidentiary proof submitted by defendant established, prima facie, that this action for assigned first-party no-fault benefits was premature, since it was commenced less than 30 days after plaintiff's March 11, 2011 service of the claim ( seeInsurance Law § 5106[a]; 11 NYCRR 65–3.5; Mount Sinai Hosp. v. Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007] ). In opposition, plaintiff's assertion that it mailed the claim to defendant in March 2010 was insufficient to raise a triable issue, since the record shows that the March 2010 claim related to services that were rendered on a date different than that set forth in the claim at issue in the case at bar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.