November 16, 2018

Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51644(U))

Headnote

The case involved Island Life Chiropractic, P.C. seeking to recover assigned first-party no-fault benefits from Erie Insurance Company of New York. The insurance company had denied the claim due to the provider's failure to submit the claim within 45 days of the services being rendered. The Civil Court denied the insurance company's motion for summary judgment, finding that the sole issue for trial was whether the claim had been timely submitted. The insurance company appealed, arguing that the provider had failed to comply with the regulation requiring submission of claims within 45 days. The appellate court affirmed the lower court's decision, finding that the affidavit of the provider's owner was sufficient to demonstrate a triable issue of fact regarding the timeliness of the claim submission. Therefore, the insurance company did not establish, as a matter of law, that the provider had failed to comply with the regulation, and the lower court's decision was affirmed.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51644(U))

Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51644(U)) [*1]

Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y.

2018 NY Slip Op 51644(U) [61 Misc 3d 142(A)]

Decided on November 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 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
2016-1395 K C

Island Life Chiropractic, P.C., as Assignee of Powell, Jason, Respondent,
against
Erie Insurance Company of New York, Appellant.

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 30, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claim at issue based on plaintiff’s failure to submit the claim to defendant within 45 days of the date the services had been rendered. The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim form had been timely and proper, and that the sole issue for trial was defendant’s defense that the claim had not been timely submitted.

Contrary to defendant’s sole contention on appeal, the affidavit of plaintiff’s owner was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant. Consequently, defendant did not establish, as a matter of law, that plaintiff had failed to comply with the regulation requiring submission of claims within 45 days of the services rendered (see 11 NYCRR 65-1.1).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018