BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(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 (Robin S. Garson, J.), entered August 17, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered September 13, 2010 awarding plaintiff the principal sum of $3,328.90 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was [*2]subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by plaintiff’s billing supervisor was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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]; 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment upon its first through fifth causes of action (see Westchester Med. Ctr., 78 AD3d 1168).

Defendant’s cross motion for summary judgment was properly denied. Defendant failed to establish that the initial verification and follow-up verification requests were timely mailed to plaintiff’s assignor (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]). Since defendant did not prove that the 30-day claim determination period was tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear at an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 27, 2012