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Leica Supply, Inc. As Assignee of Shana Moore v. American Transit Insurance Co (N.Y.App.Term 04/30/2013)

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 30, 2013

LEICA SUPPLY, INC. AS ASSIGNEE OF SHANA MOORE, RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 8, 2011.

Leica Supply, Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2013

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

The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion, defendant proffered an affidavit by its claims examiner which was sufficient to establish that defendant's denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff had submitted its claims to defendant more than 45 days after the date the services had been rendered to plaintiff's assignor (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Defendant's denial of claim form adequately advised plaintiff of the basis for the denial, and it further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Aliotta, J.P., Pesce and Rios, JJ., concur. Decision Date: April 30, 2013

20130430

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