Daily Med. Equip. Distrib. Ctr., Inc. v. Interboro Ins. Co.

Full title: Daily Medical Equipment Distribution Center, Inc., as Assignee of Estrada…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jul 21, 2017

2017 N.Y. Slip Op. 50958 (N.Y. App. Term 2017)

63 N.Y.S.3d 304

Opinion

2014-1804 Q C

07-21-2017

Daily Medical Equipment Distribution Center, Inc., as Assignee of Estrada, Eva, Respondent, v. Interboro Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant.

Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 15, 2014. 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.

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 because defendant had timely and properly requested verification and the verification had not been provided to defendant. Insofar as is relevant to this appeal, the Civil Court denied defendant's cross motion and found that the only remaining issue for trial was whether defendant had received the verification it had requested.

As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, plaintiff's action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and defendant's cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 21, 2017