Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U))

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co.

2009 NY Slip Op 52222(U) [25 Misc 3d 134(A)]

Decided on October 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.

Delta Diagnostic Radiology, P.C. as assignee of FRANK LOUIGARDE Respondent,

against

Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich J.), entered December 16, 2008, deemed from a judgment of the same court entered January 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2008 order which, inter alia, granted plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $878.67.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to plaintiff's motion for summary judgment and in support of its cross motion for summary judgment, that plaintiff's claim was untimely because it was submitted more than 45 days after the services at issue were rendered, and that plaintiff's motion was premature because plaintiff had failed to respond to defendant's discovery demands. Defendant appeals from so much of the Civil Court's order as granted plaintiff's motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Contrary to defendant's contention, although plaintiff's claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]). Further, defendant failed to demonstrate that discovery was needed in [*2]order to show the existence of a triable issue of fact (see CPLR 3212 [f]).

As defendant's papers failed to establish any other basis to deny plaintiff's motion, the judgment in favor of plaintiff is affirmed.