D.S. Chiropractic, P.C. v Country-Wide Ins. Co.

[*1] D.S. Chiropractic, P.C. v Country-Wide Ins. Co. 2009 NY Slip Op 51579(U) [24 Misc 3d 138(A)] Decided on July 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1090 Q C.

D.S. Chiropractic, P.C. as assignee of MARIAN PLANTT, Respondent,

against

Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered April 7, 2008, deemed from a judgment of the same court entered May 28, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 7, 2008 order granting plaintiff's motion for summary judgment and implicitly denying defendant's motion for summary judgment, awarded plaintiff the principal sum of $459.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff's motion for summary judgment and implicitly denied defendant's cross motion for summary judgment, finding that after defendant initially requested verification of the claims, defendant failed to allow 30 days to pass before issuing second requests. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant's contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff's billing manager was sufficient to establish that the documents annexed to plaintiff's moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff's moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant's claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant's papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Consequently, defendant's contention that the instant action is premature lacks merit. Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009