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Psychology Ym, P.C. As Assignee of Riley Everton and Nicola Smith v. Progressive Northeastern Ins. Co

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


December 16, 2011

PSYCHOLOGY YM, P.C. AS ASSIGNEE OF RILEY EVERTON AND NICOLA SMITH,
APPELLANT,
v.
PROGRESSIVE NORTHEASTERN INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009.

Psychology YM, P.C. v Progressive Northeastern Ins. Co.

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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: STEINHARDT, J.P., PESCE and WESTON, JJ

The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant's motion for summary judgment dismissing the complaint as premature, based upon outstanding verification requests, and denied plaintiff's cross motion for summary judgment.

The affidavit of defendant's litigation representative submitted in support of defendant's motion for summary judgment was sufficient to establish that defendant had timely mailed requests and follow-up requests for verification 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]).

Since plaintiff did not respond to the verification requests prior to the commencement of the action, defendant's motion for summary judgment dismissing the action as premature was properly granted, as defendant's time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; 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]; Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

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

Decision Date: December 16, 2011

20111216

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