SS Med. Care, P.C. v Eveready Ins. Co.

[*1] SS Med. Care, P.C. v Eveready Ins. Co. 2014 NY Slip Op 51305(U) Decided on August 20, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-519 K C

SS Medical Care, P.C. as Assignee of CHARLES ROBINSON, Respondent,

against

Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 26, 2011. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made CPLR 3212 (g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff's favor are vacated, 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, plaintiff moved for, among other things, summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is premature due to plaintiff's failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made CPLR 3212 (g) findings in plaintiff's favor, denied defendant's cross motion, and limited the issues for trial.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (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]). Defendant demonstrated that it had not received the requested verification. Plaintiff did not oppose defendant's cross motion. Contrary to the Civil Court's statement, there is nothing in the record which would require defendant to prove that the copies of the verification letters annexed to defendant's cross motion had not been tampered with or altered (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 [1994]; People v Dicks, 100 AD3d 528 [2012]; Rotanelli v Longo, 210 AD2d 392 [1994]). As 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]), plaintiff's action is premature.

Accordingly, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in plaintiff's favor are vacated, and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014