March 12, 2008

Bright Med. Supply Corp. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50536(U))

Headnote

The court considered a motion for summary judgment from the defendant to dismiss the complaint on the grounds that the action was premature due to the plaintiff's failure to adequately respond to verification requests. The plaintiff also cross-moved for summary judgment. The court denied both the defendant's motion and the plaintiff's cross motion. The main issues decided were whether the defendant's motion for summary judgment should be granted and whether the appeal should be dismissed. The court held that the defendant's motion for summary judgment was granted upon reargument and the appeal was dismissed as moot due to the order granting the motion for summary judgment.

Reported in New York Official Reports at Bright Med. Supply Corp. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50536(U))

Bright Med. Supply Corp. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50536(U)) [*1]

Bright Med. Supply Corp. v Progressive Northeastern Ins. Co.

2008 NY Slip Op 50536(U) [19 Misc 3d 130(A)]

Decided on March 12, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-89 K C.

Bright Medical Supply Corp. a/a/o Miguel A. Dueno, Respondent,
against
Progressive Northeastern Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 17, 2006. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature as defendant’s time to pay or deny the claim was tolled due to plaintiff’s failure to adequately respond to timely verification and follow-up verification requests. Plaintiff cross-moved for summary judgment. The court denied defendant’s motion and plaintiff’s cross motion. The instant appeal by defendant ensued.

Upon oral argument of this appeal on February 13, 2007, this court was informed that, by order dated July 31, 2007, the court below had granted a motion by defendant to reargue, and, upon reargument, had granted defendant’s motion for summary judgment dismissing the complaint. In light of the order dated July 31, 2007, the instant appeal has been rendered moot. Accordingly, the appeal is dismissed.

This court reminds the parties’ counsel and the bar in general of the affirmative obligation to immediately notify an appellate court when an underlying action has been settled or the appeal otherwise rendered moot (cf. Rules of App Div, 2d Dept [22 NYCRR] § 670.2 [g]).

Weston Patterson, J.P., Golia and Rios, JJ. [*2]
Decision Date: March 12, 2008