Parkview Med. Advanced, P.C. v Travelers Ins. Co.

[*1] Parkview Med. Advanced, P.C. v Travelers Ins. Co. 2015 NY Slip Op 51873(U) Decided on December 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : SOLOMON, J.P., WESTON and ELLIOT, JJ.
2014-1135 K C

Parkview Medical Advanced, P.C. as Assignee of Allen Haynes, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 26, 2014. The judgment, entered pursuant to an order entered March 12, 2014 granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,939.10.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 12, 2014 as granted the branches of plaintiff's motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff's motion are denied, those branches of defendant's cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney's fees thereon.

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 is premature inasmuch as plaintiff had failed to provide requested additional verification of the claims in question. By order entered March 12, 2014, the Civil Court granted plaintiff's motion and denied defendant's unopposed cross motion. Defendant appeals from a judgment entered March 26, 2014 pursuant to the March 12, 2014 order.

Inasmuch as defendant raises no issue with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

The affidavits of defendant's claim representative and mail center employee established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its requests and follow-up requests for additional verification of the claims, with the exception of the claim for $121.18, upon which the eighth cause of action of the complaint was based. As to the first through seventh and the ninth causes of action, defendant demonstrated that it had not received the requested verification, and plaintiff did not oppose defendant's cross motion. Consequently, the 30-day period within which defendant was [*2]required to pay or deny the claims on those causes of action 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, the first through seventh and the ninth causes of action are premature.

Accordingly, the judgment is reversed, so much of the order entered March 12, 2014 as granted the branches of plaintiff's motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff's motion are denied, those branches of defendant's cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney's fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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

Decision Date: December 09, 2015