Velen Med. Supply, Inc. v Country-Wide Ins. Co. (2009 NY Slip Op 52630(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 29, 2008. The judgment, entered upon an order of the same court entered May 8, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied 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 summary judgment. Defendant opposed plaintiff’s motion and cross-
moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification request had been sent to plaintiff 29 days after the initial request for verification. A judgment was subsequently entered, and this appeal by defendant ensued.

It is undisputed that defendant timely mailed its initial request for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification request, which was mailed on the 29th day after the initial verification request, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial request for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (___ AD3d ___, 2009 NY Slip Op 08585 [2d Dept 2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at *2 [citations omitted]). In view of the foregoing, we reach no other [*2]issue.

Accordingly, the judgment is reversed, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted on the ground that the action is premature.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2009