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Five Boro Psychological Services, P.C. As Assignee of Anthony Sadie v. Clarendon National Insurance Company

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


December 23, 2011

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF ANTHONY SADIE,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 26, 2010.

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2011

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

The order denied defendant's motion for summary judgment dismissing the complaint without prejudice to renewal upon proof that plaintiff's assignor "was given notice per HIPAA."

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint without prejudice to renewal upon proof that plaintiff's assignor "was given notice per HIPAA."

On appeal, defendant contends, and plaintiff concedes, that no HIPAA authorization or notification was required. Defendant argues that it was entitled to summary judgment dismissing the complaint because it had not received written notice of the accident, which was a condition precedent to coverage.

Defendant established, through its submissions, that it had not received any written notice of the accident involving plaintiff's assignor, that it had timely denied plaintiff's claims on that basis, and that it had advised plaintiff in its denial that late notice might be excused if it was provided with "reasonable justification" for the failure to give timely notice (Insurance Department Regulations [11 NYCRR] §§ 65-1.1, 65-3.3 [e]). In opposition to defendant's motion, plaintiff failed to demonstrate either that defendant had already been provided with timely written notice or that defendant had been provided with "reasonable justification" for the failure to comply with this requirement. Since compliance with the notice requirement of the policy is a condition precedent to coverage (see New York & Presbyt. Hosp. v Country Wide Ins. Co., 17 NY3d 586 [2011]) and since plaintiff failed to demonstrate the existence of a triable issue of fact (see Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion is granted.

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

Decision Date: December 23, 2011

20111223

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