|Westchester Med. Ctr. v A Cent. Ins. Co.|
|2014 NY Slip Op 50347(U) [42 Misc 3d 146(A)]|
|Decided on February 28, 2014|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the District Court of Nassau County, First District (Andrea
Phoenix, J.), dated June 4, 2012. The order, insofar as appealed from, upon reargument
and renewal, adhered to a prior determination granting plaintiff's motion for summary
judgment and denying defendant's cross motion for summary judgment dismissing the
ORDERED that the order, insofar as appealed from, is reversed, without costs, and, upon reargument and renewal, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature since plaintiff had failed to provide requested documentary verification. By order dated February 29, 2012, the District Court granted plaintiff's motion and denied defendant's cross motion. Defendant appeals from so much of an order dated June 4, 2012 as, upon reargument and renewal, adhered to the prior determination.
Defendant established, through the affidavit of its no-fault litigation examiner, that it had first received plaintiff's hospital claim form on May 9, 2011. Defendant further indicated that it had received copies of the same hospital bill on May 25 and July 18, 2011. Defendant also demonstrated that it had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]) on May 29, 2011 and June 29, 2011, respectively, and that plaintiff had not responded to the verification requests. Plaintiff, which asserted that defendant had received the claim form on July 18, 2011, failed to rebut defendant's showing of its receipt of an identical claim on May 9, 2011, or establish that it had responded to defendant's verification requests. Contrary to plaintiff's contention, the 30-day period in which to pay or deny a claim did not run anew as the result of plaintiff's resubmission of the claim (see New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516  Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 ). Consequently, the District Court should have dismissed the complaint as 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  Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 [*2]AD3d 492  Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 ).
Accordingly, the order, insofar as appealed from, is reversed, and, upon reargument and renewal, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014