Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. (2009 NY Slip Op 50456(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 19, 2006. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action. The order, insofar as cross-appealed from by defendant as limited by its brief, denied its application in the Civil Court to search the record and grant defendant summary judgment dismissing plaintiff’s first cause of action.

Order modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted; as so modified, affirmed without costs and matter remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, and while it did not cross-move for any relief, it requested that the court search the record and grant it summary judgment. The Civil Court denied plaintiff’s motion and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action on the ground that it was premature. Plaintiff appeals from said order. Defendant cross-appeals, arguing that, upon the search of the record, the court should have granted defendant summary judgment dismissing plaintiff’s first cause of action on the ground that it too was premature (see Coleman v Hayes, 294 AD2d 458 [2002]).

Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, [*2]and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff’s corporate officer demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant established that its requests for verification and follow-up verification of the claim upon which plaintiff’s second cause of action was based, were timely mailed by setting forth the office practices or procedures used to ensure that such items are properly addressed and mailed (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 [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as plaintiff did not demonstrate that it provided defendant with the verification sought by defendant in its verification and follow-up verification requests, the Civil Court, under the circumstances presented, upon searching the record, properly granted defendant summary judgment dismissing plaintiff’s second cause of action, since said cause of action is premature as payment upon this claim is not overdue (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] [failure to respond to request and follow-up request for verification renders action premature]).

It is uncontroverted that defendant received plaintiff’s claims for the services upon which plaintiff’s first cause of action is based and issued timely NF-10 denial of claim forms, which denied said claims due to the alleged failure of the assignor to attend independent medical examinations (IMEs). However, the affidavit submitted by the general manager/marketing director for the company defendant employed to issue verification requests on its behalf was insufficient to show that any verification requests for IMEs were mailed and that the assignor failed to appear at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to raise a triable issue of fact, and plaintiff is entitled to summary judgment upon its first cause of action (id.).

Accordingly, plaintiff’s motion for summary judgment upon its first cause of action is granted and the matter is remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon said cause of action pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 16, 2009