May 19, 2015

Emc Health Prods., Inc. v Geico Ins. Co. (2015 NY Slip Op 50800(U))

Headnote

The main issue in this case was whether the plaintiff responded to the defendant's verification requests in a timely manner, as failure to do so would render the action premature. The court made findings in plaintiff's favor and denied the defendant's cross motion for summary judgment. The only remaining issue for trial was determined to be whether the plaintiff had responded to defendant's verification requests. The court found that there was a triable issue of fact as to whether the plaintiff responded to the verification requests, and the order was affirmed with costs. The holding of the case was that the plaintiff's motion for summary judgment was denied, and the only remaining issue for trial was whether the plaintiff had responded to the defendant's verification requests.

Reported in New York Official Reports at Emc Health Prods., Inc. v Geico Ins. Co. (2015 NY Slip Op 50800(U))

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

EMC Health Products, Inc. as Assignee of DUVALL DANIELS, Respondent,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 14, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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, as plaintiff had failed to respond to requested verification. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was whether plaintiff had responded to defendant’s verification requests.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Moreover, upon a review of the record, we agree with the Civil Court that there is a triable issue of fact as to whether plaintiff responded to defendant’s verification requests (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 19, 2015