Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 8, 2009.
Ukon Med. Care, P.C. v Clarendon Natl. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2012
PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ
The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
The affidavit of defendant's claims division employee established that
defendant had timely mailed (see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic
Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its denial of
claim forms, which denied the claims on the ground that the assignor had not submitted proper notice of the
accident to defendant within 30 days of the accident. The affidavit further stated that defendant had first learned
of the accident when it had received a bill some two months after the accident, thereby demonstrating the lack
of proper notice. As defendant established its prima facie entitlement to judgment as a matter of law, the burden
shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had
learned of the accident in a timely manner. Despite being informed by the denial of claim forms that it had the
opportunity to "submit[ ] written proof providing clear and reasonable justification for the failure" to timely advise
defendant of the accident (Insurance Department Regulations [11 NYCRR] §§
65-1.1; 65-2.4 [b]), plaintiff did not present any evidence that it
had availed itself of the opportunity. In light of the foregoing,
plaintiff failed to demonstrate the existence of a triable issue of
fact (Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d
150[A], 2012 NY Slip Op 51660[U] [App Term, 2d, 11th
& 13th Jud Dists 2012]). Plaintiff's remaining contentions lack merit.
Accordingly, the order is affirmed.
Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November ...