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Bronx Expert Radiology, P.C. A/A/O Robert Fontecchio, Plaintiff-Respondent v. Nyc Transit Authority

New York Supreme and/or Appellate Courts Appellate Term, First Department


August 18, 2011

BRONX EXPERT RADIOLOGY, P.C. A/A/O ROBERT FONTECCHIO, PLAINTIFF-RESPONDENT, - -
v.
NYC TRANSIT AUTHORITY, DEFENDANT-APPELLANT.

Per curiam.

Bronx Expert Radiology, P.C. v NYC Tr. Auth.

2011 NY Slip Op 51571(U)

Decided on August 18, 2011

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered March 10, 2010, in favor of plaintiff in the principal sum of $2,750.28, based upon an order (same court and Judge), entered February 24, 2010, which granted plaintiff's motion for summary judgment on the complaint and denied defendant's cross motion for summary judgment dismissing the complaint.

Judgment (Nelida Malave-Gonzalez, J.), entered March 10, 2010, awarding plaintiff a recovery of $2,750.28, and bringing up for review an order (same court and Judge), entered February 24, 2010, which, inter alia, granted plaintiff's motion for summary judgment, reversed, with $30 costs, judgment vacated and plaintiff's motion for summary judgment denied. Appeal from order (same court and Judge), entered February 24, 2010, dismissed, without costs, as subsumed in the appeal from the judgment.

In this action to recover first-party no-fault benefits, Civil Court erred in granting plaintiff's motion for summary judgment on the complaint, since plaintiff failed to establish as a matter of law a "reasonable justification" for its untimely submission of the proof of claims to defendant (see 11 NYCRR 65-1.1; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [2007]). Accordingly, plaintiff's motion should have been denied.

Defendant's cross motion for summary judgment dismissing the complaint was properly denied as defendant failed to establish that it gave "due consideration" to the explanation offered by plaintiff for the late submission of its no-fault claims as required by the insurance regulations (see 11 NYCRR 65-3.5[l]; Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 863 [2003]; Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50747[U] [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: August 18, 2011

20110818

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