Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52176(U))

Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 52176(U) [37 Misc 3d 136(A)]

Decided on November 26, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Ukon Medical Care, P.C. as Assignee of ROBERT ANGELORA, Appellant, —

against

Clarendon National Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 8, 2009. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

The affidavit of defendant's claims division employee established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc
3d 16 [App Term, 2d & 11th Jud Dists 2007]) its denial of claim forms, which denied the claims on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident. The affidavit further stated that defendant had first learned of the accident when it had received a bill some two months after the accident, thereby [*2]demonstrating the lack of proper notice. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident in a timely manner. Despite being informed by the denial of claim forms that it had the opportunity to "submit[ ] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Plaintiff's remaining contentions lack merit.