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Triangle R, Inc. As Assignee of Godfrey Livermore v. Clarendon Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 10, 2010

TRIANGLE R, INC. AS ASSIGNEE OF GODFREY LIVERMORE,
RESPONDENT,
v.
CLARENDON INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered May 11, 2009.

Triangle R, Inc. v Clarendon Ins. Co.

Decided on December 10, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

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 on the ground that plaintiff had failed to provide requested verification. In opposition to the motion, plaintiff argued that defendant had failed to prove that it had timely mailed verification requests, and plaintiff asserted that it had never received verification requests. The Civil Court denied defendant's motion. This appeal by defendant ensued.

The affidavit of defendant's claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to provide the requested verification. The mere denial by plaintiff's billing manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004];

Morales v Yaghoobian, 13 AD3d 424 [2004]). Contrary to plaintiff's contention, the fact that copies of the verification requests, which were sent to plaintiff's assignor, were sent to the wrong address does not render the verification requests a nullity since the requested verification was sought from plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [c]; § 65-3.6 [b]; cf. Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and plaintiff's action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

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

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 10, 2010

20101210

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