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Jesa Medical Supply, Inc. As Assignee of Rotimi Williams v. American Transit Ins. Co

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


January 13, 2012

JESA MEDICAL SUPPLY, INC. AS ASSIGNEE OF ROTIMI WILLIAMS,
RESPONDENT,
v.
AMERICAN TRANSIT INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 30, 2010, deemed from a judgment of the same court entered July 22, 2010 (see CPLR 5512 [a]; Neuman v Otto,

Jesa Med. Supply, Inc. v American Tr. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2012

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The judgment, entered pursuant to the June 30, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,177.63

ORDERED that the judgment is reversed, without costs, the order entered June 30, 2010 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. After judgment was entered, defendant appealed from the order. We deem defendant's appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

The affidavit of defendant's litigation representative established that defendant had timely mailed its request and follow-up request for verification in accordance with its 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]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (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]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and, thus, plaintiff's action is premature.

Accordingly, the judgment is reversed, the order is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: January 13, 2012

20120113

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