Vista Surgical Supplies, Inc. v General Assur. Co.

[*1] Vista Surgical Supplies, Inc. v General Assur. Co. 2006 NY Slip Op 51034(U) [12 Misc 3d 129(A)] Decided on May 19, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ
2005-687 K C.

Vista Surgical Supplies, Inc., a/a/o Michelle Soler, Respondent,

against

General Assurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 12, 2005. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment denied and defendant's cross motion for summary judgment dismissing the complaint granted.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant's assertion that plaintiff failed to establish its prima facie case because plaintiff did not authenticate the assignment lacks merit (see A.B. Med. Servs. PLLC v Prudential Prop & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

As argued by defendant, the record demonstrates that within 15 business days after receiving plaintiff's claims, defendant mailed timely requests for additional verification and that it later mailed timely follow-up requests (see 11 NYCRR 65-3.5 [b]; 65-3.6 [a]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]; King's Med. Supply Inc. v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450[U] [App Term, 2d & 11th Jud [*2]Dists]). Defendant asserted that plaintiff did not serve responses to the verification requests prior to the commencement of the action. Plaintiff failed to controvert such assertion. Accordingly, defendant's cross motion to dismiss the action as premature should be granted since defendant's time to pay or deny the claim did not elapse (see 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]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 19, 2006