D.S. Chiropractic, P.C. v Country-Wide Ins. Co.

[*1] D.S. Chiropractic, P.C. v Country-Wide Ins. Co. 2010 NY Slip Op 50649(U) [27 Misc 3d 131(A)] Decided on April 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-2083 Q C.

D.S. Chiropractic, P.C. a/a/o DANIELLE DANIELS, Respondent,

against

Country-Wide Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2008. The judgment, entered pursuant to an order of the same court dated April 30, 2008 granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $3,553.29.

ORDERED that the judgment is reversed without costs, the order dated April 30, 2008 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order dated April 30, 2008, granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. Defendant appeals from the judgment which was entered, pursuant to the Civil Court's order, on July 30, 2008, awarding plaintiff the sum of $3,553.29.

Contrary to defendant's contention, the affidavit submitted by plaintiff's billing manager was sufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Defendant's assertion that plaintiff failed to prove submission of its claims to defendant lacks merit. Consequently, plaintiff established its prima facie entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant's follow-up verification requests, which were mailed on the 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant's initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. [*2](67 AD3d 862 [2009]), "the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff's action is premature" (id. at 865).

Accordingly, the judgment is reversed, the order dated April 30, 2008 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 09, 2010