January 13, 2012

Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))

Headnote

The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests through standard office practices and procedures. The insurer demonstrated nonreceipt, and the provider did not show that it supplied the verification before commencing suit. Under 11 NYCRR 65-3.8 (a), the 30-day payment or denial period therefore had not begun. Deeming the appeal to be from the judgment under CPLR 5512 (a), the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))

[*1]
Jesa Med. Supply, Inc. v American Tr. Ins. Co.
2012 NY Slip Op 50052(U) [34 Misc 3d 140(A)]
Decided on January 13, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2161 K C.
Jesa Medical Supply, Inc. as Assignee of ROTIMI WILLIAMS, Respondent,

against

American Transit Ins. Co., Appellant.

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 [*2]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.
Decision Date: January 13, 2012