EMC Health Prods., Inc. v Geico Ins. Co.

[*1] EMC Health Prods., Inc. v Geico Ins. Co. 2014 NY Slip Op 51834(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2244 Q C

EMC Health Products, Inc. as Assignee of WAPLE ALLEYNE, Respondent,

against

Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in favor of plaintiff are vacated, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because defendant had timely and properly requested verification and plaintiff had not responded. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made, in effect, CPLR 3212 (g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issue for trial was whether plaintiff had responded to defendant's verification requests.

As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (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]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, plaintiff's action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014