SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
November 26, 2012
ORIENTAL WORLD ACUPUNCTURE, P.C. AS ASSIGNEE OF ELIZABETH GUTIERREZ,
AMERICAN TRANSIT INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered January 12, 2011.
Oriental World Acupuncture, P.C. v American Tr. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2012
PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ
Nov 26, 2012
The order granted defendant's motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint and, upon reargument, vacated the prior order and granted defendant's cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to receive no-fault benefits since plaintiff had failed to respond to its verification requests. By order dated March 4, 2010, the Civil Court denied both motions, and found that plaintiff had "established [its] prima facie case" and that defendant had "established its proper and timely mailing of its denials." Thereafter, defendant moved for leave to reargue its cross motion for summary judgment. The Civil Court granted leave to reargue and, upon reargument, granted defendant summary judgment dismissing the complaint, finding that since plaintiff had not responded to defendant's verification requests, defendant "does not have to pay or deny a claim until it has received all relevant verification [and, therefore,] the within action was prematurely commenced."
The affidavit submitted by defendant in support of its cross 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 ; 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 ; Hospital for Joint Diseases v State
Farm Mut. Auto. Ins. Co., 8 AD3d 533 ; 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]). As a result,
defendant established its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Rios, J.P., Aliotta and Solomon, JJ., concur. Decision Date: November 26, 2012
© 1992-2012 VersusLaw Inc.