Tam Med. Supply Corp. v Lancer Ins. Co.

[*1] Tam Med. Supply Corp. v Lancer Ins. Co. 2015 NY Slip Op 51126(U) Decided on July 27, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1240 Q C

Tam Medical Supply Corp. as Assignee of MAGALIE DAMIS, Appellant,

against

Lancer Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2013. The order granted defendant's motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for, in effect, summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for, in effect, summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had not provided verification as requested by defendant.

Since a claim need not be paid or denied until all demanded verification with respect thereto is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). In support of its motion, defendant demonstrated that it had timely mailed initial 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]). However, upon a review of the record, we find that defendant did not demonstrate, prima facie, that it had not received the requested verification. Consequently, defendant is not entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, we need not reach defendant's remaining contention.

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

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

Decision Date: July 27, 2015