Mega Aid Pharm. I, Inc. v. A. Cent. Ins. Co.

75 Misc. 3d 138(A), 2022 NY Slip Op 50579(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 10, 2022
• Docket: 2020-181 K C
• Status: Unpublished

Opinion

Mega Aid Pharm. I, Inc. v A. Cent. Ins. Co. (2022 NY Slip Op 50579(U)) [*1]

Mega Aid Pharm. I, Inc. v A. Cent. Ins. Co.

2022 NY Slip Op 50579(U) [75 Misc 3d 138(A)]

Decided on June 10, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through July 8, 2022; it will not be published in the printed Official Reports.

Decided on June 10, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-181 K C

Mega Aid Pharmacy I, Inc., as Assignee of Amanda Camacho, Respondent,

against

A. Central Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 16, 2019. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the grounds that plaintiff's claims were submitted more than 45 days after the subject supplies had been furnished, lack of medical necessity, and that the fees sought exceeded the amounts permitted by the workers' compensation fee schedule.

The affidavit of defendant's claims representative established that the claims at issue had been submitted more than 45 days after those supplies had been furnished (see 11 NYCRR 65-1.1) and that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on that ground. Furthermore, defendant's denial of claim form advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (11 NYCRR 65-1.1). Plaintiff failed to raise a triable issue of fact in response to defendant's prima facie showing. Indeed, the claim forms annexed to a cross motion for summary judgment by plaintiff were dated more than 45 days after the supplies at issue were furnished. In light of the foregoing, defendant's motion for summary judgment dismissing the complaint should have been granted. We reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed, and defendant's motion for [*2]summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022