Huntington Hosp. v New York Cent. Mut. Fire Ins. Co.

[*1] Huntington Hosp. v New York Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 52274(U) Decided on December 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaSALLE, J.P., MOLIA and IANNACCI, JJ
2011-2439 N C.

Huntington Hospital as Assignee of CANDICE VERDON, Respondent,

against

New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered August 2, 2011. 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 District Court which denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by its litigation examiner which established that defendant had timely mailed a request and follow-up request for verification (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that the requested verification had not been provided. Since plaintiff has not rebutted defendant's prima facie [*2]showing that defendant's initial request and follow-up request for verification were timely mailed and that plaintiff failed to respond to the requests, defendant established that its time to pay or deny the claim had been tolled. Consequently, defendant's motion for summary judgment dismissing the complaint, on the ground that the action was premature, should have been granted (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]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Contrary to plaintiff's argument, plaintiff did not prove that defendant had issued a denial in response to the bill at issue. The denial attached to plaintiff's opposition was a general denial, not a specific denial, as it did not set forth an amount of the bill, or the date of the bill, or who had rendered services, or what those services were. Moreover, the denial lists Candice Vernon as the applicant for benefits, not plaintiff, and explicitly states that the applicant is not an assignee.

Accordingly, the order is reversed, and defendant's motion for summary judgment dismissing the complaint is granted.

LaSalle, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 07, 2012