December 16, 2011

Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))

Headnote

The court considered the fact that plaintiff, Psychology YM, P.C., was seeking to recover first-party no-fault benefits, but had not responded to verification requests from the defendant, Progressive Northeastern Ins. Co., prior to commencing the action. The main issue decided was whether defendant's motion for summary judgment dismissing the complaint as premature was properly granted, and whether plaintiff's cross motion for summary judgment should be denied. The court held that the affidavit of defendant's litigation representative established that timely verification requests had been mailed in accordance with standard office practices, and since plaintiff did not respond to these requests prior to commencing the action, the motion for summary judgment was properly granted. Therefore, the court affirmed the order without costs.

Reported in New York Official Reports at Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))

Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U)) [*1]

Psychology YM, P.C. v Progressive Northeastern Ins. Co.

2011 NY Slip Op 52275(U) [34 Misc 3d 126(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-426 K C.

Psychology YM, P.C. as Assignee of RILEY EVERTON and NICOLA SMITH, Appellant,
against
Progressive Northeastern Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. 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, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint as premature, based upon outstanding verification requests, and denied plaintiff’s cross motion for summary judgment.

The affidavit of defendant’s litigation representative submitted in support of defendant’s motion for summary judgment was sufficient to establish that defendant had timely mailed requests and follow-up requests for verification in accordance with defendant’s standard office practices and procedures (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 plaintiff did not respond to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the action as premature was properly granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011