Opinion
2017-315 K C
04-12-2019
CPM MED SUPPLY, INC., as Assignee of Carlos Espinoza-Calle, Appellant, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Respondent.
Fuld & Karp, P.C. (David Karp of counsel), for appellant. Richard T. Lau & Associates (Linda Filosa and Arthur Kontaxis of counsel), for respondent.
Fuld & Karp, P.C. (David Karp of counsel), for appellant.
Richard T. Lau & Associates (Linda Filosa and Arthur Kontaxis of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 31, 2016. The order granted defendant's motion for summary judgment dismissing the complaint as premature.
ORDERED that the order is affirmed, with $ 25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint as premature, as plaintiff had failed to provide verification which defendant had requested.
Contrary to plaintiff's argument, it was required to respond to defendant's verification requests. As plaintiff did not respond to defendant's verification requests with respect to plaintiff's claim for the sum of $ 1,989.85, plaintiff failed to demonstrate a basis to disturb so much of the order as dismissed the complaint insofar as it sought to recover upon the $ 1,989.85 claim.
While plaintiff did respond in writing to defendant's verification requests pertaining to the claim for $ 1,785, plaintiff neither provided the invoices requested by defendant nor stated that it was not in possession or control of those invoices. Rather, plaintiff merely set forth its opinion that the items requested were "not needed," based upon its own interpretation of how the rate of reimbursement should be calculated. This is not a "reasonable justification for the failure to comply" with a verification request ( 11 NYCRR 65-3.8 [b] [3] ), or a sufficient response (see Village Med. Supply, Inc. v. Travelers Prop. Cas. Ins. Co. , 61 Misc 3d 126[A], 2018 NY Slip Op 51311[U] [App Term, 1st Dept 2018] ; D & R Med. Supply v. American Tr. Ins. Co. , 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v. Tri-State Consumer Ins. Co. , 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Mount Sinai Hosp. v. Auto One Ins. Co. , 121 AD3d 869 [2014] ).
We note that while the Civil Court dismissed the complaint as premature, the claimed services were rendered after April 1, 2013, and defendant properly denied the claims at issue on the ground that plaintiff had failed to provide the requested verification within 120 days of the initial verification request in this action (see 11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3] ). Therefore, defendant was entitled to dismissal of plaintiff's complaint with prejudice, but as defendant has not cross-appealed, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.