Opinion
No. 2020-695 K C
12-02-2022
American Kinetics Lab, Inc., as Assignee of Tiesha Torres, Respondent, v. GEICO General Insurance Company, Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Unpublished Opinion
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant.
Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered November 14, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice.
In this action by a provider to recover assigned first-party no-fault benefits, in an order dated November 14, 2019, insofar as appealed from and as limited by the brief, the Civil Court denied defendant's cross motion for summary judgment dismissing the complaint.
The proof submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]) and that defendant had not received the requested verification. Plaintiff raised no triable of fact in opposition. Thus, the action is premature and the complaint must be dismissed without prejudice (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 A.D.3d 492 [2005]; AOM Med. Supply, Inc. v Hereford Ins. Co., 69 Misc.3d 142 [A], 2020 NY Slip Op 51366[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc.3d 132 [A], 2017 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted without prejudice.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.