March 17, 2014

Favorite Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50467(U))

Headnote

The court considered the facts of an action by a provider to recover assigned first-party no-fault benefits, where defendant's motion for summary judgment dismissing the complaint was granted. The main issue decided was whether the defendant had timely mailed verification requests and follow-up verification requests, and whether the plaintiff had provided the verification requested prior to commencing the action. The holding of the court was that the defendant had demonstrated they had not received all the verification requested, and the plaintiff did not show that such verification had been provided to the defendant prior to commencing the action, making the plaintiff's action premature. Therefore, the Civil Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Favorite Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50467(U))

Favorite Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50467(U)) [*1]

Favorite Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50467(U) [43 Misc 3d 126(A)]

Decided on March 17, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-291 K C.

Favorite Health Products, Inc. as Assignee of KIMBERLY PIERRE, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (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 all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Thus, 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 plaintiff’s action is premature. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014