APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

On the court's own motion, the order and decision dated March 12, 2007, are recalled and vacated and the following is substituted therefor:

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered July 23, 2004. The order, insofar as appealed from, denied plaintiff's cross motion for summary judgment and granted defendant's motion to change venue.

Order, insofar as appealed from, reversed without costs, plaintiff's cross motion for summary judgment granted, defendant's motion to change venue denied as moot and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant, defendant moved to change the venue of the action from Kings County to Queens County and plaintiff cross-moved for summary judgment. The court, inter alia, granted defendant's motion to change venue and denied plaintiff's cross motion which sought summary judgment. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Contrary to defendant's contention, the letters it sent to plaintiff were insufficient to toll the running of the applicable 30-day claim determination periods. This court has held that an insurer "may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period" (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; see also A.B. Med. Servs. PLLC v Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Accordingly, since defendant failed to pay or deny the claim within the 30-day prescribed periods

(11 NYCRR 65.3.8 [c]), it is precluded from raising most defenses, including a defense based upon lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Due to the fact that plaintiff established its entitlement to summary judgment, defendant's motion to change venue should have been denied as moot. Accordingly, the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Presiding Justice, Appellate Term

Associate Justice, Appellate Term

Associate Justice, Appellate Term