Dr. Stephen Matrangolo, D.C., P.C. v Encompass Indem. Co.

[*1] Dr. Stephen Matrangolo, D.C., P.C. v Encompass Indem. Co. 2012 NY Slip Op 51338(U) Decided on July 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-52 RI C.

Dr. Stephen Matrangolo, D.C., P.C. as Assignee of CAROL DAVIS, Respondent,

against

Encompass Indemnity Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 19, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion for summary judgment dismissing the complaint.

The affidavit of defendant's claims representative was sufficient to establish that defendant had timely mailed the requests and follow-up requests for verification (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]), and that plaintiff had failed to respond to the verification requests prior to the commencement of this action. Consequently, defendant's motion for summary judgment dismissing the action as premature should have been granted, as defendant's time to pay or deny [*2]the claims had not yet elapsed (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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2012