AR Med. Rehabilitation, P.C. v MVAIC, 2010 NY Slip Op 50828(U)(App. Term 2d Dept. 2010)
“It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days after the services at issue were rendered and that plaintiff did not do so (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). MVAIC’s denial of plaintiff’s claim for $3,903.92, based upon its untimely submission, also [*2]informed plaintiff that it could excuse the delay if plaintiff provided “written justification” for the delay (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Nir, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U]). In opposition to MVAIC’s motion for summary judgment, plaintiff did not establish that it had provided MVAIC with a written justification for its untimely submission of the claim form seeking the sum of $3,903.92.”
Key cite the NY Arthroscopy case, a First Department case. It appears that the Appellate Term Second Department cites that First Department case more than any other case for the proposition that Plaintiff failed to offer a sufficient excuse to defeat an insurance carrier’s late notice motion. I hate to say this, but I will anyway. Why does MVAIC have it both ways? First, the failure to qualify someone as eligible to receive benefits is a non-precludable condition precedent to coverage. This is, to the best of my knowledge, the only non precludable condition precedent that exists in no-fault law. Second, should the provider or the injured person’s attorney attempt to qualify the injured person but the 45-days to submit the bill elapses, then MVAIC can deny all benefits.
