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

[*1] Alev Med. Supply, Inc. v Eveready Ins. Co. 2012 NY Slip Op 52184(U) Decided on November 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
2011-1923 Q C.

Alev Medical Supply, Inc. as Assignee of LAMONT BARNER, Respondent, Nov 26, 2012

against

Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011, deemed from a judgment of the same court entered May 26, 2011 (see CPLR 5512 [a]). The judgment, entered pursuant to the May 2, 2011 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,236.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 2, 2011 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, defendant appeals from an order of the Civil Court entered May 2, 2011 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. Defendant's appeal is deemed to be from the judgment entered pursuant to the order (see CPLR 5512 [a]).

The affidavit of defendant's no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent's [*2]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]). Defendant demonstrated that it had not received all of the verification requested, and plaintiff did not demonstrate that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; 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]; D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff's action is premature.

Accordingly, the judgment is reversed, the order entered May 2, 2011 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2012