Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y.

[*1] Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. 2018 NY Slip Op 51810(U) Decided on December 6, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-1623 S C

Lenox Hill Radiology and MIA, P.C., as Assignee of Manuel Garza, Respondent,

against

Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jonathan Depasquale, Jason Tenenbaum and Talia Beard of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated July 6, 2017. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that the action was premature inasmuch as the time in which defendant had to pay or deny plaintiff's claims had been tolled because plaintiff had failed to respond to timely requests for verification. By order dated July 6, 2017, the District Court denied the motion.

Contrary to the determination of the District Court, defendant established the timely mailing of the initial and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant also sufficiently established that it had not received the requested verification, and plaintiff did not show that the 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 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]), and, thus, plaintiff's action is premature.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 06, 2018