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Triangle R, Inc. As Assignee of Roman Ostrovsky, Respondent v. Tri-State Consumer Insurance Company

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


February 19, 2013

TRIANGLE R, INC. AS ASSIGNEE OF ROMAN OSTROVSKY, RESPONDENT, --
v.
TRI-STATE CONSUMER INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered May 27, 2010.

Triangle R, Inc. v Tri-State Consumer 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This opinion is uncorrected and will not be published in the printed Official Reports.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 denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion 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 which denied defendant's motion for summary judgment dismissing the complaint.

The affidavits submitted by defendant 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 (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). The mere denial by plaintiff's office manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Triangle R, Inc. v Clarendon Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52159[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for summary judgment dismissing the complaint should have been granted, as defendant's time to pay or deny the claims had not begun to run (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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

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

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 19, 2013

20130219

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