Park v. Zurich American Ins. Co.

Full title: Jae Ook Park, M.D. as Assignee of YOON JUNG KIM, YOU SEON KIM-SHIN and SAE…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Oct 11, 2011

2011 N.Y. Slip Op. 51836 (N.Y. App. Term 2011)

Opinion

2009-1786 K C.

10-11-2011

Jae Ook Park, M.D. as Assignee of YOON JUNG KIM, YOU SEON KIM-SHIN and SAE RO MI LEE, Appellant, v. Zurich American Insurance Company, Respondent.

PESCE

PRESENT: : , P.J., RIOS and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 21, 2009. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, finding that defendant had established that the claims were not submitted within 45 days after the services had been rendered.

Contrary to plaintiff's contention, the affidavit of defendant's no-fault specialist sufficiently established that the denial of claim forms, which denied plaintiff's claims on the ground that they had been submitted more than 45 days after the services at issue had been rendered (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), were timely mailed in accordance with defendant's standard office practices and procedures (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]). However, as defendant did not demonstrate that its denial of claim forms advised plaintiff that late submission of the proofs of claim would be excused if plaintiff could provide a reasonable justification for the late submissions (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.