Triangle R, Inc. v GEICO Ins. Co.

[*1] Triangle R, Inc. v GEICO Ins. Co. 2010 NY Slip Op 50885(U) [27 Misc 3d 137(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-806 Q C.

Triangle R, Inc. a/a/o Manuel Cividanes, Respondent,

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 17, 2009, deemed from a judgment of the same court entered April 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $479.50.

ORDERED that the judgment is reversed without costs, the order entered March 17, 2009 is vacated, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff's commencement of a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because it was commenced before defendant had received responses to its outstanding verification requests. By order entered March 17, 2009, the Civil Court granted plaintiff's motion and denied defendant's cross motion. Defendant's appeal from that order is deemed to be from the judgment which was [*2]subsequently entered (see CPLR 5501 [c]).

The affidavit of defendant's claims representative established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff had failed to provide the requested verification. In opposition to defendant's cross motion, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, under the circumstances presented, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff's action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]). We do not reach any other issue.

Accordingly, the judgment is reversed, the order entered March 17, 2009 is vacated, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff's commencement of a new action.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010