Doshi Diagnostic Imaging Servs. v Progressive Ins. Co.

[*1] Doshi Diagnostic Imaging Servs. v Progressive Ins. Co. 2006 NY Slip Op 51430(U) [12 Misc 3d 144(A)] Decided on July 17, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1451 N C.

DOSHI DIAGNOSTIC IMAGING SERVICES ASSIGNEE OF SAMI REXHEPI, Appellant,

against

PROGRESSIVE INSURANCE COMPANY, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Sondra K. Pardes, J.), dated March 29, 2005. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover $676.61 in first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of no-fault benefits was overdue. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order dated March 29, 2005, the court below granted defendant's motion and denied plaintiff's cross motion. The instant appeal by plaintiff ensued.

In January 2004, plaintiff provided defendant with an assignment of benefits form by submitting a "NYS form NF-AOB" in response to defendant's timely November 2003 request for verification and December 2003 follow-up request (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). However, the statutory NF-AOB form plaintiff submitted contains a section for the signature of the provider (see 11 NYCRR 65-3.11 [b] [2] [iii]) which was left blank. Defendant objected to the incomplete form and informed plaintiff that it wanted an assignment containing the provider's signature. Since plaintiff has yet to provide the requested verification consisting of an assignment with the provider's signature, the statutory period in which defendant has to pay or deny the claim has been tolled (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). Consequently, defendant has established that payment of no-fault benefits was not overdue. Plaintiff's remaining contentions regarding the validity of the NF-AOB form it sent to defendant in January 2004 are lacking in merit. [*2]

Accordingly, the court below properly granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 17, 2006