Parkview Med. & Surgical, P.C. v Praetorian Ins. Co.

[*1] Parkview Med. & Surgical, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 50491(U) Decided on March 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2014-1282 K C

Parkview Medical & Surgical, P.C. as Assignee of MARLO SELBY, Respondent,

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 7, 2014. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion seeking summary judgment dismissing the first cause of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing the first cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied the branch of defendant's motion seeking summary judgment dismissing the first cause of action. On appeal, defendant argues that the first cause of action should have been dismissed as premature.

The affidavit of defendant's claims examiner established that defendant had timely mailed its verification request and follow-up verification request (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]). Defendant demonstrated that it had not received the verification requested, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action. Thus, with respect to the first cause of action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run, and the Civil Court should have dismissed the first cause of action as premature (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]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking summary judgment dismissing the first cause of action is granted.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: March 26, 2015