Sunrise Acupuncture PC v. ELRAC, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 2016
• Docket: 2016 NYSlipOp 50905(U)
• Status: Published

Opinion

Sunrise Acupuncture PC a/a/o Rainwater Blackfoot, Plaintiff-Appellant,

against

ELRAC, Inc. d/b/a Enterprise Rent-A-Car, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered November 3, 2014, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered November 3, 2014, affirmed, with $10 costs.

Defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff's no-fault claims, by establishing that it timely denied the subject claims on the ground that plaintiff submitted the claims more than one year after the services were rendered, a period well beyond that called for in the applicable regulation (see 11 NYCRR 65-2.4(c); see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733 [2010]; see also Matter of Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405 [2014]).

In opposition, plaintiff failed to raise a triable issue. Insofar as plaintiff's submissions showed that the claims were mistakenly submitted to MVAIC, thus justifying plaintiff's initial delay in submitting the claims to defendant (see 11 NYCRR 65—3.5[l]), plaintiff failed to submit any competent proof establishing the dates the claims were denied by MVAIC or when it was apprised that defendant was the proper carrier (see Bronx Expert Radiology, P.C. v Great N. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51474[U][App Term, 1st Dept. 2009]). Plaintiff's remaining contention that defendant failed to give due consideration to its excuse, is unavailing, since plaintiff's own submissions show that defendant considered the excuse proffered by plaintiff and rejected it.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 15, 2016