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Medical Careworks, P.C. As Assignee of Leticia Vasconcelos v. American Transit Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


June 27, 2012

MEDICAL CAREWORKS, P.C. AS ASSIGNEE OF LETICIA VASCONCELOS,
APPELLANT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), dated December 15, 2010.

Medical Careworks, P.C. v American Tr. Ins. Co.

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012

PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which denied its motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

The affidavit by defendant's no-fault examiner established that defendant was first notified of plaintiff's assignor's accident, which occurred on July 11, 2007, through the receipt of the assignor's NF-2 form, which was dated September 25, 2007. As a result, defendant denied plaintiff's claims on the ground that proper notice of claim in writing had not been received by defendant within 30 days from the date of accident, as required by Insurance Department Regulations (11 NYCRR) § 65-1.1 (see also New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; 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]). Thus, defendant established its prima facie entitlement to judgment as a matter of law, and the burden then shifted to plaintiff to demonstrate a triable issue of fact. In opposition, however, plaintiff did not proffer any proof, but merely speculated that defendant could have received timely notice of the accident from another source. Additionally, despite being informed through the denial of claim forms that the late notice would be excused if plaintiff could provide reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff failed to do so. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact and, thus, the District Court properly granted defendant's cross motion for summary judgment dismissing the complaint. Consequently, we need not address the merits of plaintiff's one-sentence argument made in support of granting its motion for summary judgment.

Accordingly, the order is affirmed.

Molia, J.P., Iannacci and LaSalle, JJ., concur.

Decision Date: June 27, 2012

20120627

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