All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(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 (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, in effect, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands.

ORDERED that the order, insofar as appealed from, is modified by striking the provision granting the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands; as so modified, the order is affirmed, with $25 costs to defendant, and, upon searching the record, the branch of defendant’s cross motion seeking 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 summaryjudgment dismissing the complaint or, in the alternative, to compel plaintiff to respond to its discovery demands. The Civil Court, by order entered November 18, 2010, in effect, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claim had not been paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

We note that although defendant cross-moved for summary judgment in the Civil Court, it did not cross-appeal from so much of the order as, in effect, denied its cross motion. This [*2]appellate court, however, has the power to search the record on this appeal by plaintiff and to award summary judgment to the non-appealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). Upon a review of the record, we find that the affidavits submitted by defendant in support of its cross motion 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 initial and follow-up requests for verification pursuant to Insurance Department Regulations (11 NYCRR) §§ 65-3.5 (b) and 65-3.6 (b). Inasmuch as it is uncontroverted that plaintiff failed to respond to defendant’s verification requests, the 30-day period within which defendant was required to pay or deny the claim had not yet commenced to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599 [2011]). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d at 600). In view of the foregoing, we pass on no other issue.

Accordingly, the order, insofar as appealed from, is modified by striking the provision granting the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands and, upon a search of the record, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is granted.

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