December 2, 2022

American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 51267(U))

Headnote

The court considered the fact that the defendant had timely mailed its initial and follow-up verification requests and that they had not received the requested verification. The main issue decided was whether the plaintiff had raised a triable issue of fact in opposition to the defendant's cross motion for summary judgment. The court held that the action was premature, and the complaint must be dismissed without prejudice. The order denying defendant's cross motion for summary judgment was reversed, and defendant's cross motion for summary judgment dismissing the complaint was granted without prejudice.

Reported in New York Official Reports at American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 51267(U))

American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 51267(U)) [*1]

American Kinetics Lab, Inc. v GEICO Gen. Ins. Co.

2022 NY Slip Op 51267(U) [77 Misc 3d 135(A)]

Decided on December 2, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-695 K C

American Kinetics Lab, Inc., as Assignee of Tiesha Torres, Respondent,
against
GEICO General Insurance Company, Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered November 14, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, in an order dated November 14, 2019, insofar as appealed from and as limited by the brief, the Civil Court denied defendant’s cross motion for summary judgment dismissing the complaint.

The proof submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that defendant had not received the requested verification. Plaintiff raised no triable of fact in opposition. Thus, the action is premature and the complaint must be dismissed without prejudice (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; AOM [*2]Med. Supply, Inc. v Hereford Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51366[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice.

ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022