Alur Med. Supply, Inc. v Eveready Ins. Co.

[*1] Alur Med. Supply, Inc. v Eveready Ins. Co. 2009 NY Slip Op 51492(U) [24 Misc 3d 135(A)] Decided on July 9, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-363 Q C.

Alur Medical Supply, Inc. as assignee of GLORIA BRYANT, Respondent,

against

Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 3, 2008, deemed from a judgment of the same court entered February 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff's motion for summary judgment and implicitly denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,864.25.

Judgment reversed without costs, order entered January 3, 2008 vacated, plaintiff's motion for summary judgment denied and defendant's cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because it was commenced before defendant received responses to its outstanding verification requests. The Civil Court granted plaintiff's motion and implicitly denied defendant's cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The record demonstrates that defendant timely mailed requests for verification and follow-up requests for verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's cross motion to dismiss the action as premature should have been granted, as defendant's time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York [*2]Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

In light of the foregoing, we reach no other issue.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 09, 2009