AOM Med. Supply, Inc. v Hereford Ins. Co.

[*1] AOM Med. Supply, Inc. v Hereford Ins. Co. 2020 NY Slip Op 51366(U) Decided on November 13, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2228 K C

AOM Medical Supply, Inc., as Assignee of Jean Noel, Appellant,

against

Hereford Insurance Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Timothy Bishop of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered October 18, 2018. The order, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint.

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, defendant moved for summary judgment dismissing the complaint on the ground that defendant properly denied the claims at issue based upon plaintiff's failure to provide requested verification within 120 days after the initial verification request (see 11 NYCRR 65-3.8 [b] [3]; 65-3.5 [o]). By order entered October 15, 2018, the Civil Court granted defendant's motion to the extent of dismissing the complaint without prejudice. Plaintiff appeals.

Contrary to plaintiff's contention, defendant demonstrated, prima facie, that it had not received all of the requested verification. As the order appealed from dismissed the complaint without prejudice (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]), plaintiff's remaining contention is academic.

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

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020