Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co.

[*1] Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co. 2005 NY Slip Op 50134(U) Decided on February 7, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570078/04

Edison Medical Services, P.C., Assignee of SULAY LAMOUTH, JOEL ALVAREZ AND MARIA MEXBIZER, Plaintiff-Respondent,

against

Lumbermans Mutual Casualty Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County, entered October 6, 2003 (Robert A. Sackett, J.) which denied its CPLR 3211(a)(7) motion to dismiss the complaint for failure to state a cause of action and granted plaintiff's cross motion for summary judgment in the principal sum of $8,306.70.

PER CURIAM:

Order dated October 6, 2003 (Robert A. Sackett, J.) modified to deny plaintiff's cross motion for summary judgment; as modified, order affirmed, without costs.

The action, seeking recovery of motor vehicle no-fault benefits, is not ripe for summary disposition. The existing record raises triable issues as to whether the defendant insurer's initial and follow-up requests for verification were timely and properly made in [*2]accordance with the timetable and procedures for verification set out in the governing Insurance Law regulations (see 11 NYCRR 65.15[d][1], [e][2], now renumbered 11 NYCRR 65-3.5[a], [c], 65-3.6[b]). Contrary to defendant's argument, the legal consequence of an ultimate trial determination that it did not timely request verification would not be the mere "shorten[ing]" of the 30-day period for payment or denial of the claim, but the running of the prescribed time period altogether, "'even before verification [was] obtained', due to the carrier's 'lack of diligence in obtaining the verification' (citations omitted)." (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996], lv denied 90 NY2d 802 [1997].)
This constitutes the decision and order of the court.
Decision Date: February 07, 2005