Opinion
No. 2012–1464 Q C.
12-19-2014
RIGHT SOLUTION MEDICAL SUPPLY, INC. as Assignee of Marie Isaac, Respondent, v. NY CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.
Opinion
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 15, 2012 as granted the branches of plaintiff's cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant's motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff's cross motion seeking summary judgment upon the first, second and third causes of action are denied, and the branches of defendant's motion seeking summary judgment dismissing those causes of action are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff's cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant's motion seeking summary judgment dismissing those causes of action. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501[c] ).
The branches of defendant's motion seeking summary judgment dismissing plaintiff's second and third causes of action, were supported by an affidavit executed by defendant's litigation examiner which sufficiently described defendant's standard mailing practices and procedures so as to establish the timely mailing of defendant's request for additional verification (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] ). In addition, the affidavit demonstrated that, after defendant had received the requested additional verification, defendant had timely denied the claims (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16 ) on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the scheduling letters had been timely mailed in accordance with that office's standard mailing practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16 ). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of defendant's motion seeking summary judgment dismissing plaintiff's second and third causes of action should have been granted.
With respect to plaintiff's first cause of action, the affidavit of defendant's litigation examiner established that defendant had timely mailed verification requests and follow-up verification requests (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16 ). Defendant also demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of this action. Consequently, the 30–day period within which defendant was required to pay or deny the claim did not begin to run (see 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 N.Y. Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ; Doshi Diagnostic Imaging Servs. v. State Farm Ins. Co., 16 Misc.3d 42 [App Term, 2d & 11th Jud Dists 2007] ), and, thus, plaintiff's first cause of action is premature. As a result, the branch of defendant's motion seeking summary judgment dismissing plaintiff's first cause of action should also have been granted.
Accordingly, the judgment is reversed, so much of the order entered May 15, 2012 as granted the branches of plaintiff's cross motion seeking summary judgment upon the first, second and third causes of action and denied the branch of defendant's motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff's cross motion seeking summary judgment upon the first, second, and third causes of action are denied and the branches of defendant's motion seeking summary judgment dismissing those causes of action are granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.