Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. 2015 NY Slip Op 50080(U) Decided on January 15, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1325 Q C

Healing Health Products, Inc. as Assignee of LETICIA LUGO, Respondent,

against

New York Central Mutual Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 10, 2013. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support. It is undisputed that on January 26, 2011, defendant received one claim form, which listed five different medical supplies for which plaintiff sought reimbursement as assignee of the injured party. The affidavit of defendant's no-fault litigation examiner established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its verification request and follow-up verification request. Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action on the claim. Consequently, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cen. 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 plaintiff's action is premature.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for a KO custom rigid knee support is granted.

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

Decision Date: January 15, 2015