Med-Tech Prod., Inc. v Progressive Northeastern Ins. Co.

[*1] Med-Tech Prod., Inc. v Progressive Northeastern Ins. Co. 2012 NY Slip Op 50930(U) Decided on May 15, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1202 K C.

Med-Tech Product, Inc. as Assignee of RAY SANCHARA and RAJIV SANCHARA, Appellant,

against

Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 1, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of defendant's motion seeking summary judgment dismissing the third and sixth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as
granted the branches of defendant's motion seeking summary judgment dismissing the third and sixth causes of action.

The affidavit of defendant's claims examiner established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its requests and follow-up requests for verification to plaintiff and that plaintiff [*2]had failed to provide the requested verification.

In opposition to defendant's motion for summary judgment, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run, and plaintiff's causes of action upon these claims are premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Thus, the Civil Court properly granted the branches of defendant's motion seeking summary judgment dismissing the third and sixth causes of action.

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 15, 2012