December 11, 2012

Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U))

Headnote

The court considered the fact that the defendant had appealed from an order of the Civil Court of the City of New York, Bronx County, which denied its motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff had submitted timely proof of its claim for first-party no-fault benefits. The court held that in opposition to the defendant's showing of entitlement to judgment as a matter of law, the plaintiff had failed to raise a triable issue of fact. The conclusory affidavit of the plaintiff's employee and the certified mail receipt were insufficient to raise an issue of fact, especially given that the receipt contained two different postmarks and a file number that did not correspond to the plaintiff's claim. The court also noted that the plaintiff had submitted no proof of "reasonable justification" for the failure to provide timely notice of the claim. Therefore, the court reversed the order, granted the defendant's motion, and dismissed the complaint.

Reported in New York Official Reports at Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U))

Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U)) [*1]

Magenta Med. P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 52236(U) [37 Misc 3d 139(A)]

Decided on December 11, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570863/12.

Magenta Medical P.C., a/a/o Sandis A. Taveras, Plaintiff-Respondent, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 17, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 17, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65—1.1; 65—3.3[d],[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), plaintiff failed to raise a triable issue of fact. The conclusory affidavit of plaintiff’s employee, who had no personal knowledge of the date the claim was mailed, and described in only the most general terms her offices mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Nor did the certified mail receipt relied upon by plaintiff raise a triable issue as to actual mailing (see Mid City Construction Co., Inc. v Sirius America Insurance Company, 70 AD3d 789, 790 [2010]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]), especially given that the receipt contained two different postmarks and a file number that did not correspond to plaintiff’s claim. We also note that plaintiff submitted no proof of “reasonable justification” for the failure to provide timely notice of the claim (see 11 NYCRR 65-3.3[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 592).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: December 11, 2012