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Compas Medical, P.C. As Assignee of Michael Odus v. Praetorian Ins. Co

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


February 19, 2013

COMPAS MEDICAL, P.C. AS ASSIGNEE OF MICHAEL ODUS,
RESPONDENT, --
v.
PRAETORIAN INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2010.

Compas Med., P.C. v Praetorian Ins. Co.

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The order, insofar as appealed from, granted the branches of plaintiff's motion seeking summary judgment on plaintiff's first eight causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered December 15, 2010 awarding plaintiff the principal sum of $1,931.61 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 29, 2010 as granted the branches of plaintiff's motion seeking summary judgment on plaintiff's first eight causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff's motion are denied, and those branches of defendant's cross motion are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on its complaint and defendant cross moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court, by order entered November 29, 2010, in effect, granted the branches of plaintiff's motion seeking summary judgment on its first eight causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action, by directing a judgment to be entered in favor of plaintiff in the principal sum of $1,931.61, representing plaintiff's first eight causes of action. A judgment was subsequently entered in favor of plaintiff in that amount. After the judgment was entered, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff's first, second, seventh and eighth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (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]) its initial and follow-up requests for verification to plaintiff and that plaintiff had failed to provide the requested verification. In opposition, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run, and plaintiff's causes of action upon these claims are 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])

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff's third through sixth causes of action, defendant submitted an affidavit by a supervisor of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted, among other things, an affidavit from the doctor who was to perform the physiatrist/PMR IMEs which was sufficient to establish that plaintiff's assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's claims examiner demonstrated that the denial of claim forms, which denied these claims based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Therefore, defendant was entitled to summary judgment dismissing those causes of action (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Accordingly, the judgment is reversed, so much of the order entered November 29, 2010 as granted the branches of plaintiff's motion seeking summary judgment on plaintiff's first eight causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff's motion are denied, and those branches of defendant's cross motion are granted.

Pesce, P.J., Rios and Solomon, JJ., concur.

Decision Date: February 19, 2013

20130219

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