First Choice Acupuncture, P.C. v Progressive Ins. Co. (2005 NY Slip Op 50354(U))

District Court, Nassau County

33887/02

Freiberg & Peck, LLP, New York City, for defendant.

Belesi, Donovan & Conroy, P.C., Garden City, for plaintiff.

Scott Fairgrieve, J.

Defendant Progressive Insurance Company moves for an order pursuant to Section 2221 of the CPLR to modify this Court’s previous order dated June 29, 2004. Previously, this Court denied defendant’s motion for summary judgment based upon plaintiff commencing this within action to recover no-fault benefits without first having responded to the verification demands sent by defendant.

This Court denied the defendant’s motion for summary judgment and instead, ordered plaintiff to respond to the verification demands within 30 days.

After plaintiff served the responses to the verification requests to the defendant’s attorney (not to the defendant insurance company), defendant allegedly failed to issue a timely denial of no-fault benefits. Based upon this failure, plaintiff cross moves and claims it is now entitled to summary judgment.

This Court has reconsidered this issue based upon a review of all papers submitted. This Court now recalls its initial decision of June 29, 2004 and grants summary to the defendant because defendant was under no duty to issue a denial until plaintiff responded to the verification requests. [*2]Thus, plaintiff’s action to recover no-fault was premature because there was no issue in controversy and the action should have been dismissed.

A case directly on point is Psych & Massage Therapy Association, PLLC v. Progressive Cas. Ins. Co., 5 Misc 3d 723, 2004 WL 2563584 (NY City Civ. Ct, 2004), wherein the court held that the failure of the plaintiff to respond to a proper verification request precludes an action to recover no-fault benefits because:

Accordingly, as defendant complied with the letter and spirit of the No Fault regulations, and plaintiff suffered no prejudice from defendant’s expeditious response to plaintiff’s claim, defendant’s verification requests are deemed timely and proper. As plaintiff never responded to defendant’s timely and proper verification requests, defendant was under no duty to issue a denial. See Westchester Medical v. Travelers Prop., 2001 WL 1682931 (Nass. S.C. 2001). Therefore, plaintiff commenced the action prematurely. As there are no issues of fact in dispute, defendant’s motion is granted. This constitutes the decision and order of the Court.

See also Westchester Medical Center v. Travelers Property & Casualty Ins. Co., 2001 WL 1682931 (Nass. Sup Ct 2001), which also dismissed a plaintiff’s action because it was premature:

Based upon the foregoing, the plaintiff’s lawsuit was premature in that a lawsuit with regard to no-fault benefits cannot be commenced until such time as there is an actual dispute with regard to the payment of the benefits. The benefits were not overdue in light of the fact that the time within which to pay or deny the claim(s) of the plaintiff was extended pending the receipt of further verification. See: 11 NYCRR Section 65.15(h). The First Cause of Action is dismissed.

Also on point is New York Presbyterian Hosp. v. American Transit Ins. Co., 233 AD2d 431, 650 N.Y.S.2d 258 (2nd Dept 2001).

CONCLUSION

Based upon the foregoing, the plaintiff’s action was filed prematurely because plaintiff had failed to properly respond to the defendant’s verification requests. The decision of this Court dated June 29, 2004, is vacated in light of the above. The plaintiff’s action is dismissed. Thus, the plaintiff’s cross motion is denied.

So ordered:

DISTRICT COURT JUDGE

Dated:March 22, 2005

CC: