May 13, 2015

SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U))

Headnote

The court considered the defendant's appeal 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 was whether the defendant had established its entitlement to summary judgment dismissing the complaint based on the plaintiff's alleged untimely submission of the claims beyond the applicable 45-day time limit. The court held that the defendant had failed to meet its burden as it did not establish its regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims. Therefore, the denial of the defendant's motion was required, regardless of the sufficiency of the plaintiff's opposition papers. As a result, the court affirmed the order of the Civil Court, denying the defendant's motion for summary judgment.

Reported in New York Official Reports at SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U))

SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U)) [*1]

SMB Med. P.C. v Chubb Indem. Ins. Co.

2015 NY Slip Op 50719(U) [47 Misc 3d 146(A)]

Decided on May 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570039/15

SMB Medical P.C. a/a/o Faim Forto, Plaintiff-Respondent, –
against
Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 2, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor), entered July 2, 2014, affirmed, with $10 costs.

Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff’s alleged untimely submission of the claims beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]). The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45-day period. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In view of our determination, we reach no other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2015