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Infinity Health Products, Ltd. As Assignee of Mary Osei v. Liberty Mutual Fire Ins. Co

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 21, 2012

INFINITY HEALTH PRODUCTS, LTD. AS ASSIGNEE OF MARY OSEI,
RESPONDENT,
v.
LIBERTY MUTUAL FIRE INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 5, 2010, deemed from a judgment of the same court entered March 24, 2010 (see CPLR 5512 [a]).

Infinity Health Prods., Ltd. v Liberty 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This opinion is uncorrected and will not be published in the printed Official Reports.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

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

The judgment, entered pursuant to the March 5, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion, in effect, for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,061.

ORDERED that the judgment is reversed, with $30 costs, the order entered March 5, 2010 is vacated, plaintiff's motion for summary judgment is denied, and defendant's cross motion, in effect, 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 an order of the Civil Court entered March 5, 2010, granting plaintiff's motion for summary judgment and denying defendant's cross motion, in effect, for summary judgment dismissing the complaint. Plaintiff's appeal from the order is deemed to be from the judgment that was entered pursuant to the order (see CPLR 5512 [a]).

The affidavit of defendant's claim specialist established that defendant had timely mailed 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]). Contrary to the finding of the Civil Court, the affidavit of defendant's claim specialist was also sufficient to establish that plaintiff had failed to respond to those requests. It is noted that plaintiff never alleged that it had responded.

Consequently, the 30-day period within which defendant was required to pay or deny plaintiff's claims did not commence to run and plaintiff's action is premature (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]). Thus, plaintiff's motion should have been denied and defendant's cross motion should have been granted (see Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co., 35 Misc 3d 135[A], 2012 NY Slip Op 50774[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered March 5, 2010 is vacated, plaintiff's motion for summary judgment is denied, and defendant's cross motion, in effect, for summary judgment is granted.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 21, 2012

20121221

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