|Proscan Imaging, P.C. v Travelers Indem. Co.|
|2010 NY Slip Op 51176(U) [28 Misc 3d 127(A)]|
|Decided on July 7, 2010|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn M.
Jimenez, J.), entered April 2, 2008. The order granted plaintiff's motion for summary judgment
and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed without costs, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff commencing a new action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it was commenced before defendant had received responses to its outstanding verification requests. By order entered April 2, 2008, the Civil Court granted plaintiff's motion and denied defendant's cross motion. Defendant appeals from that order.
The affidavits of defendant's claims representative and the director of defendant's mail facility, submitted in opposition to plaintiff's motion and in support of defendant's cross motion, alleged that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to the cross motion, plaintiff admitted that it had received the verification requests. Since plaintiff did not demonstrate that it had provided defendant, prior to [*2]the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not commence 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 ; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff's action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 ). We reach no other issue.
Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff commencing a new action.
Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010