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Pomona Medical Diagnostics, P.C. As Assignee of Francisco Kelly v. Travelers Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK


March 17, 2011

POMONA MEDICAL DIAGNOSTICS, P.C. AS ASSIGNEE OF FRANCISCO KELLY,
APPELLANT,
v.
TRAVELERS INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2009, deemed from a judgment of the same court entered September 11, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 13, 2009 order granting defendant's motion for summary judgment, dismissed the complaint.

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2011

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

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

ORDERED that the judgment is affirmed, without 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 plaintiff's action was premature, inasmuch as plaintiff had failed to provide requested verification of the claim. Plaintiff opposed the motion. By ordered entered August 13, 2009, the Civil Court granted defendant's motion for summary judgment, and this appeal by plaintiff ensued. A judgment was subsequently entered, from which this appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit of defendant's litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The mere denial by plaintiff's medical biller 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]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for summary judgment dismissing the complaint was properly granted, as defendant's time to pay or deny the claims had not begun to run (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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the judgment is affirmed. We reach no other issue.

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

Decision Date: March 17, 2011

20110317

© 1992-2011 VersusLaw Inc.



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