November 2, 2018

Dynasty Med. Care, P.C. v 21st Century Sec. Ins. Co. (2018 NY Slip Op 51550(U))

Headnote

The court considered the fact that the defendant had first learned of the accident on the date it had received an NF-2 form, which had been submitted more than 30 days after the accident had occurred. The denial of claim forms further advised the plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided. The main issue was whether the defendant had established its prima facie entitlement to judgment as a matter of law in a case by a provider to recover assigned first-party no-fault benefits. The holding of the case was that the order denying defendant's motion for summary judgment dismissing the complaint was reversed, with $30 costs, and the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Dynasty Med. Care, P.C. v 21st Century Sec. Ins. Co. (2018 NY Slip Op 51550(U))

Dynasty Med. Care, P.C. v 21st Century Sec. Ins. Co. (2018 NY Slip Op 51550(U)) [*1]

Dynasty Med. Care, P.C. v 21st Century Sec. Ins. Co.

2018 NY Slip Op 51550(U) [61 Misc 3d 136(A)]

Decided on November 2, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2902 RI C

Dynasty Medical Care, P.C., as Assignee of Jose Rodriguez, Respondent,
against
21st Century Security Insurance Company, Appellant.

Law Office of Bryan M. Rothenberg (Jennifer A. Joseph of counsel), for appellant. Baker Sanders, LLC (Malgorzata Rafalko of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 15, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contentions, defendant established that it had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred, and that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms, which denied plaintiff’s claims on the ground that written notice of the accident had not been submitted to defendant within 30 days of its occurrence (see 11 NYCRR 65-1.1 [d]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (see 11 NYCRR 65-3.3 [e]). As defendant established its prima facie entitlement to judgment as a matter of law (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affirmation of plaintiff’s counsel submitted in opposition to defendant’s motion failed to demonstrate the existence of a triable issue of fact. Plaintiff’s remaining contentions lack merit.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018