Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co.

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. 2011 NY Slip Op 00174 Decided on January 11, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 11, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
A. GAIL PRUDENTI, P.J.
DANIEL D. ANGIOLILLO
ANITA R. FLORIO
SANDRA L. SGROI, JJ.
2009-09335
(Index No. 16622/06)

[*1]Delta Diagnostic Radiology, P.C., etc., respondent,

v

Country Wide Insurance Company, appellant.




Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of
counsel), for appellant.


DECISION & ORDER

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated May 8, 2009, which affirmed an order of the Civil Court of the City of New York, Queens County (Lebedeff, J.), dated August 1, 2007, denying the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order dated May 8, 2009, is reversed, on the facts and in the exercise of discretion, with costs, the order of the Civil Court of the City of New York, Queens County, dated August 1, 2007, is reversed, and the defendant's motion for summary judgment dismissing the complaint is granted, without prejudice to the commencement by the plaintiff of a new action.

Contrary to the conclusion of the Appellate Term, under the circumstance of this case, the defendant insurer's submission of follow-up verification requests to the plaintiff medical provider on the 30th day after the defendant sent its initial verification requests was not premature or "without effect" (see St. Vincent Medical Care, P.C. v Country-Wide Insurance Company,AD3d [decided herewith]).

Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.
PRUDENTI, P.J., ANGIOLILLO, FLORIO and SGROI, JJ., concur.

ENTER: [*2]

Matthew G. Kiernan

Clerk of the Court