Quality Rehab & P.T., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50067(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 22, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2008 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 $292.94.

ORDERED that the judgment is reversed without costs, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and
defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it had been commenced before defendant had received responses to its outstanding verification requests. By order entered September 22, 2008, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from said order is deemed to be from the judgment which was subsequently entered pursuant thereto (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim representative sufficiently established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the [*2]commencement of the action, with the verification, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; 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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]).

Accordingly, the judgment is reversed, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010