Late notice defense sustainedJune 20, 2016

Sunrise Acupuncture PC v ELRAC, Inc., 2016 NY Slip Op 50905(U)(App. Term 1st Dept. 2016)

(1) “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]).”

Submission was more than 45 after service rendered.

(2) 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])

No evidence from when MVAIC denied and when submitted to ELRAC.

(3) “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.”

Due consideration defense unavailing since Plaintiff showed the billing was considered and rejected in resubmission.

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