Tracy Ambrister, D.D.S. v Integon Natl. Ins. Co.

[*1] Ambrister v Integon Natl. Ins. Co. 2010 NY Slip Op 50489(U) [26 Misc 3d 146(A)] Decided on March 19, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 25, 2010; it will not be published in the printed Official Reports.

Decided on March 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-350 Q C.

Tracy Ambrister, D.D.S. a/a/o THOMAS CREDLE, Appellant,

against

Integon National Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 9, 2009, deemed from a judgment of the same court entered February 17, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 9, 2009 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment, finding that the action was premature as a result of plaintiff's failure to provide requested verification. This appeal by plaintiff ensued.
The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, plaintiff's sole argument is that defendant failed to prove that it had properly requested verification pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.5 (b) and § 65-3.6 (b), because it had only annexed its follow-up verification request as an exhibit to its cross motion and had failed to submit a copy of its initial verification request. We disagree. Defendant's claims examiner explained that when a provider fails to comply with a verification request, defendant's regular course of business is to stamp the original request with the words "second notice" and insert the date of the second notice. The verification request annexed as an exhibit was dated December 24, 2007 and bore a stamp of the words "second notice" and the date, January 28, 2008. Therefore, without reaching the question of whether defendant was even required in the first instance to annex its verification requests to its cross motion papers, we reject plaintiff's argument that defendant failed to annex a copy of its initial verification request. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. [*2]
Decision Date: March 19, 2010