"Due consideration" an element to a late notice claim.August 19, 2011
Bronx Expert Radiology, P.C. v NYC Tr. Auth., 2011 NY Slip Op 51571(U)(App. Term 1st Dept. 2011)
Prima facie defenses to a 45-day or 30-day rule violation now requires “due consideration” to the explanation the provider gave. So the affidavit now reads: “We considered the excuse, and found it unavailing because….” That should do the trick.
“Defendant’s cross motion for summary judgment dismissing the complaint was properly denied as defendant failed to establish that it gave “due consideration” to the explanation offered by plaintiff for the late submission of its no-fault claims as required by the insurance regulations (see 11 NYCRR 65-3.5[l]; Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 863 ; Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50747[U] ).”