April 21, 2015

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U))

Headnote

The court considered the conflicting medical expert opinions regarding the medical necessity of orthopedic surgery underlying the plaintiff's no-fault claim. The main issue decided was whether the defendant was entitled to summary judgment dismissing the plaintiff's claim in the sum of $212.37 due to the claim being submitted beyond the 45-day time limit. The court held that the conflicting expert opinions raised a triable issue for the plaintiff's claim of $3,408.11, but the defendant made a prima facie showing of entitlement to summary judgment for the $212.37 claim as it was submitted beyond the time limit, and the plaintiff failed to raise any triable issue in response. As a result, the defendant's motion for summary judgment dismissing the $212.37 claim was granted, and the order was affirmed.

Reported in New York Official Reports at Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U))

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U)) [*1]

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co.

2015 NY Slip Op 50565(U) [47 Misc 3d 137(A)]

Decided on April 21, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
&em;

Orthopedic Specialist of Greater New York a/a/o Kennia Fernandez, Plaintiff-Respondent,
against
Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 8, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor), entered July 8, 2014, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claim in the sum of $212.37; as modified, order affirmed, without costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims (see 11 NYCRR 65-1.1[d]; Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]). Plaintiff’s opposing submissions failed to raise any triable issue. The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure (see Tower Ins. Co. of NY v Ray & Frank Liq. Store, 104 AD3d 482 [2013]; Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 677 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 21, 2015