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Radiology Today, P.C. As Assignee of Salmond Sadarie v. New York Central Mutual Fire Insurance Company

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


July 27, 2011

RADIOLOGY TODAY, P.C. AS ASSIGNEE OF SALMOND SADARIE,
RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 16, 2010.

Radiology Today, P.C. v New York Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2011

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

The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 appeals from so much of an order as denied its motion for summary judgment dismissing the complaint based on a finding that defendant had failed to establish that plaintiff did not comply with defendant's requests for verification.

Contrary to plaintiff's contention, the affidavit of defendant's litigation examiner, submitted in support of defendant's motion, established that defendant had timely mailed its requests and follow-up requests for verification (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]), and that plaintiff had failed to provide the MRI films which, among other things, defendant's requests for verification had sought. As plaintiff's opposing papers failed to address defendant's requests for the assignor's MRI films, plaintiff did not demonstrate that it had provided defendant, prior to commencement of the action, with the verification requested. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not commence 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, the order, insofar as appealed from, is reversed, and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: July 27, 2011

20110727

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