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Citywide Social Work and Psychological Services, Pllc As Assignee of Celestre Gadson v. Elrac

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

CITYWIDE SOCIAL WORK AND PSYCHOLOGICAL SERVICES, PLLC AS ASSIGNEE OF CELESTRE GADSON,
APPELLANT,
v.
ELRAC, INC. DOING BUSINESS AS ENTERPRISE RENT-A-CAR,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered December 2, 2009.

Citywide Social Work & Psychological Servs., PLLC v Elrac, Inc.

Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order, insofar as appealed from as limited by the brief, upon granting the branch of defendant's motion seeking leave to reargue its prior motion for summary judgment dismissing the complaint, granted defendant's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order as, upon granting the branch of defendant's motion seeking leave to reargue its prior motion for summary judgment dismissing the complaint, granted defendant's motion for summary judgment.

The subject automobile accident occurred on May 29, 2001, and defendant received plaintiff's NF-3 forms in October and December 2001. Defendant denied plaintiff's claims on the ground that it had not been provided with notice of the accident within 90 days of the date of the accident as required by Insurance Department Regulations (11 NYCRR) former § 65.11 (m) (2). Pursuant to this regulation, as a condition precedent to an action against a self-insurer: "written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by or on behalf of each eligible injured person to the self-insurer or any of the self-insurer's authorized agents, as soon as reasonably practicable, but in no event more than 90 days after the date of the accident, unless the eligible injured person submits written proof that it was impossible to comply with such time limitation due to specific circumstances beyond such person's control." A review of the record indicates that the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint inasmuch as it was uncontroverted that defendant had not been provided with written notice of the accident within the requisite time period, and had not been provided with "written proof that it was impossible to comply with such time limitation due to specific circumstances beyond such person's control" (Insurance Department Regulations [11 NYCRR] former § 65.11 [m] [2]; see also New York & Presby. Hosp. v Country Wide Ins. Co., 17 NY3d 586 [2011]; Persaud v Rahman, 262 AD2d 542 [1999]). We note that, in 2001, there was no requirement that a denial of claim form, which denies a claim on the ground that notice of the accident was not timely provided, contain any type of ameliorative language (cf. Insurance Department Regulations [11 NYCRR] § 65-1.1 [the current regulation, requiring that a denial of claim form, which denies a claim on the ground that notice of the accident was not timely provided, must contain the ameliorative language that late notice is permitted if "the eligible injured person or that person's representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation"]).

Plaintiff's remaining contentions are either unpreserved for appellate review or lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: December 23, 2011

20111223

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