February 24, 2023

New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))

Headnote

The court considered the case of New York Manual, P.T., P.C. as the appellant and Nationwide Affinity Insurance Company of America as the respondent. The main issue decided in the case was whether the defendant had timely mailed initial and follow-up requests for verification, and if the plaintiff had failed to provide the requested verification. The court held that the defendant had demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification and that it had not received all of the requested verification. The court also found that the plaintiff had failed to establish a triable issue of fact by demonstrating that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant's verification requests. Therefore, the court affirmed the order of the Civil Court, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))

New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U)) [*1]

New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am.

2023 NY Slip Op 50281(U) [78 Misc 3d 128(A)]

Decided on February 24, 2023

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2023

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, MARINA CORA MUNDY, JJ
2022-688 K C

New York Manual, P.T., P.C., as Assignee of Martinez, Joaquin, Appellant,
against
Nationwide Affinity Insurance Company of America, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

The Law Office of Kevin J. Philbin (Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered September 15, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received all of the requested verification. In opposition, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” Thus, contrary to plaintiff’s contentions on appeal, [*2]plaintiff failed to establish a triable issue of fact by demonstrating that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 24, 2023