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Jesa Med. Supply, Inc. v. American Transit Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50052 (N.Y. App. Term 2012)

Opinion

2010-2161 K C

01-13-2012

Jesa Medical Supply, Inc. as Assignee of ROTIMI WILLIAMS, Respondent, v. American Transit Ins. Co., Appellant.


PRESENT: : , J.P., GOLIA and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 30, 2010, deemed from a judgment of the same court entered July 22, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the June 30, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,177.63

ORDERED that the judgment is reversed, without costs, the order entered June 30, 2010 is vacated, 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, the Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. After judgment was entered, defendant appealed from the order. We deem defendant's appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

The affidavit of defendant's litigation representative established that defendant had timely mailed its request and follow-up request for verification in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 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.

Accordingly, the judgment is reversed, the order is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.


Summaries of

Jesa Med. Supply, Inc. v. American Transit Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50052 (N.Y. App. Term 2012)
Case details for

Jesa Med. Supply, Inc. v. American Transit Ins. Co.

Case Details

Full title:Jesa Medical Supply, Inc. as Assignee of ROTIMI WILLIAMS, Respondent, v…

Court:Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Jan 13, 2012

Citations

2012 N.Y. Slip Op. 50052 (N.Y. App. Term 2012)