August 20, 2014

SS Med. Care, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51305(U))

Headnote

The relevant facts of the case were that an insurance company had timely mailed verification requests to a medical care provider, but had not received the requested verification. The main issue decided by the court was whether the insurance company had to prove that the copies of the verification letters had not been tampered with or altered. The court held that there was nothing in the record requiring the insurance company to prove that the copies had not been tampered with, and that as a result, the medical care provider's action was premature. Therefore, the court reversed the findings in favor of the medical care provider and granted the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at SS Med. Care, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51305(U))

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

SS Medical Care, P.C. as Assignee of CHARLES ROBINSON, Respondent,
against
Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 26, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for, among other things, summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is premature due to plaintiff’s failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and limited the issues for trial.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (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]). Defendant demonstrated that it had not received the requested verification. Plaintiff did not oppose defendant’s cross motion. Contrary to the Civil Court’s statement, there is nothing in the record which would require defendant to prove that the copies of the verification letters annexed to defendant’s cross motion had not been tampered with or altered (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 [1994]; People v Dicks, 100 AD3d 528 [2012]; Rotanelli v Longo, 210 AD2d 392 [1994]). As the 30-day period within which defendant was required to pay or deny the claims did not begin to run (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]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014