New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

[*1] New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. 2015 NY Slip Op 51627(U) Decided on November 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-939 Q C

New Way Medical Supply Corp. as Assignee of JACQUELINE RIVERA, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 21, 2013. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010, which defendant denied pursuant to the workers' compensation fee schedule.

Contrary to plaintiff's contention, defendant demonstrated prima facie that it had not received the verification requested with respect to plaintiff's claim for $909 for supplies furnished on November 9, 2010 and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. As a result, 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 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]). Consequently, so much of plaintiff's complaint as sought to recover upon this claim is premature.

Similarly, the affidavit by defendant's claims representative was sufficient to demonstrate prima facie that defendant had properly denied plaintiff's claims for supplies furnished on September 7, 2010 and November 9, 2010 pursuant to the workers' compensation fee schedule. In opposition to defendant's cross motion, plaintiff failed to raise a triable issue of fact with respect thereto. In addition, the arguments which plaintiff has raised for the first time on appeal [*2]are not properly before this court, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: November 09, 2015