Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. 2017 NY Slip Op 51817(U) Decided on December 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1018 K C

Irina Acupuncture, P.C., as Assignee of Zhane Darqan, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Law Office of Emilia I. Rutigliano (Marina Josovich, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2015. The judgment, entered pursuant to an order of that court entered December 29, 2014 denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $2,673.11.

ORDERED that, on the court's own motion, the notice of appeal from the order entered December 29, 2014 is deemed a premature notice of appeal from the judgment entered January 23, 2015 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered December 29, 2014 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered December 29, 2014, in which the Civil Court denied defendant's motion, finding that defendant was precluded from raising its defense that verification had not been provided because defendant had not timely denied plaintiff's claims [*2]on that ground, and granted plaintiff's cross motion for summary judgment. We deem the notice of appeal from the order entered December 29, 2014 to be a premature notice of appeal from a judgment which was subsequently entered on January 23, 2015 in favor of plaintiff in the principal sum of $2,673.11 (see CPLR 5520 [c]).

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]) and that it had not received the requested verification. Thus, defendant demonstrated, prima facie, that the complaint is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, the motion should have been granted and plaintiff's cross motion should have been denied.

Accordingly, the judgment is reversed, the order entered December 29, 2014 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017