Ortho Prods. & Equipments, Inc. v Eveready Ins. Co. (2013 NY Slip Op 50856(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 4, 2011, deemed from a judgment of the same court entered September 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 2011 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 $1,564.50.

ORDERED that the judgment is reversed, with $30 costs, the order entered August 4, 2011 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature since plaintiff had failed to provide all of the requested verification. Defendant appeals from an order of the Civil Court entered August 4, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross [*2]motion for summary judgment dismissing the complaint. A judgment was subsequently entered in favor of plaintiff, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (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]) its request and follow-up request for verification, which sought, among other things, prescribed NF-3 claim forms. With respect to the prescribed claim forms, the Insurance Department Regulations provide that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]). The regulation further permits an insurer to require submission of the prescribed form (id.). Contrary to the determination of the Civil Court, the information contained in the claim forms which plaintiff submitted to defendant was not “substantially the same information” (Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]) as required to be set forth on a prescribed NF-3 form (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., ___ AD3d___, 2013 NY Slip Op 02390 [2d Dept 2013]).

Since plaintiff did not demonstrate that it had provided defendant with all of the requested verification prior to the commencement of this action, 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]).

Accordingly, the judgment is reversed, the order entered August 4, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted. In light of our determination, we do not reach defendant’s remaining contentions.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013