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Brooklyn Heights Physical Therapy, P.C. As Assignee of Stephanie Bundrick, Respondent v. New York Central Mutual Fire Insurance Company

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


July 12, 2012

BROOKLYN HEIGHTS PHYSICAL THERAPY, P.C. AS ASSIGNEE OF STEPHANIE BUNDRICK, RESPONDENT, --
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), dated October 22, 2010, deemed from a judgment of the same court entered November 15, 2010 (see CPLR 5512 [a]).

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co.

Decided on July 12, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ

The judgment, entered pursuant to the October 22, 2010 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the sum of $3,552.99.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. After judgment was entered, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]).

Insofar as is relevant to this appeal, the Civil Court found that defendant had failed to submit sufficient evidence to establish mailing of timely and proper denial of claim forms in order to preserve its proffered defenses. We agree.

While defendant's initial IME scheduling letter was timely mailed, the record reflects that, after plaintiff's assignor had failed to appear for the IME, the follow-up IME scheduling letter was not timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; § 65-3.8 [j]). As a result, defendant failed to toll the 30-day statutory time period in which it had to pay or deny the claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Insurance Law 5106 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2d Dept 2009]). Consequently, defendant's denial of claim forms were untimely and defendant was precluded from offering its defense that a policy provision had been breached due to the assignor's failure to appear for IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]) as well as its defense that the fees sought were improper.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur. Decision Date: July 12, 2012

20120712

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