January 11, 2011

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00174)

Headnote

The court considered the defendant's appeal from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, which affirmed a lower order denying the defendant's motion for summary judgment. The main issue in the case was whether the defendant insurer's submission of follow-up verification requests to the plaintiff medical provider on the 30th day after the initial verification requests was premature or "without effect." The court held that under the circumstances of the case, the defendant insurer's submission of follow-up verification requests was not premature or "without effect" and therefore the defendant's motion for summary judgment dismissing the complaint should have been granted. The court reversed the lower orders and granted the defendant's motion for summary judgment without prejudice to the commencement of a new action by the plaintiff.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00174)

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co.

2011 NY Slip Op 00174 [80 AD3d 553]

January 11, 2011

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 9, 2011

Delta Diagnostic Radiology, P.C., Respondent,
v
Country Wide Insurance Company, Appellant.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated May 8, 2009, which affirmed an order of the Civil Court of the City of New York, Queens County (Lebedeff, J.), dated August 1, 2007, denying the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order dated May 8, 2009, is reversed, on the facts and in the exercise of discretion, with costs, the order of the Civil Court of the City of New York, Queens County, dated August 1, 2007, is reversed, and the defendant’s motion for summary judgment dismissing the complaint is granted, without prejudice to the commencement by the plaintiff of a new action.

Contrary to the conclusion of the Appellate Term, under the circumstance of this case, the defendant insurer’s submission of follow-up verification requests to the plaintiff medical provider on the 30th day after the defendant sent its initial verification requests was not premature or “without effect” (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 80 AD3d 599 [2011] [decided herewith]).

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.