45-day rule in action (or inaction)May 27, 2015
SMB Med. P.C. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50719(U)(App. Term 1st Dept. 2015)
“Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff’s alleged untimely submission of the claims beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]). The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims”
The First Department (unlike Second Department precedent) requires some type of discussion in the affidavit to allow the affiant to reach the conclusion that the billing was untimely submitted. Just saying the billing was received on some day is insufficient.