SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 21, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, finding that defendant had established that the claims were not submitted within 45 days after the services had been rendered.

Contrary to plaintiff’s contention, the affidavit of defendant’s no-fault specialist sufficiently established that the denial of claim forms, which denied plaintiff’s claims on the ground that they had been submitted more than 45 days after the services at issue had been rendered (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), were timely mailed 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]). However, as defendant did not demonstrate that its denial of claim forms advised plaintiff that late submission of the proofs of claim would be excused if plaintiff could provide a reasonable justification for the late submissions (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Delta Diagnostic Radiology, P.C. v [*2]Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 11, 2011

APPEARANCES OF COUNSEL

Law Office of Michael S. Nightingale, Glen Cove (Bryan G. Melnick of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.

{**34 Misc 3d at 22} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that plaintiff was precluded from litigating its entitlement to first-party no-fault benefits since a prior claim by another provider involving plaintiff’s assignor arising out of the same accident, which claim had been denied by defendant based on a lack of coverage, had already been considered in an arbitration proceeding and had resulted in an award denying reimbursement of no-fault benefits to the claimant therein. Consequently, defendant argued, the complaint should be dismissed without prejudice to plaintiff’s pursuing the matter in arbitration. In the alternative, defendant contended that the action should be dismissed with prejudice on the ground that plaintiff’s assignor had not been involved in the motor vehicle accident in question. The Civil Court, citing Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), granted defendant’s motion to the extent of dismissing the complaint without prejudice to plaintiff’s pursuing reimbursement of no-fault benefits in an arbitration proceeding. This appeal by plaintiff ensued.

In Roggio, the Court of Appeals held that a claimant who elected to arbitrate disputed [*2]claims for first-party no-fault{**34 Misc 3d at 23} benefits waived the right to commence an action to litigate subsequent claims arising from the same accident (see also Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). However, a prior arbitration proceeding involving a different claimant provider does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even though the claims may arise from the same accident (see A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

“Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits . . . Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action” (id. at 23).

Since plaintiff was not involved in the prior arbitration proceeding, and since there was no showing of privity between plaintiff and the provider who was a party to that proceeding, plaintiff was not barred from commencing the instant action, and it was error for the Civil Court to dismiss the complaint without prejudice to plaintiff’s pursuing the matter in arbitration.

With respect to defendant’s alternative ground for dismissal, we find that defendant did not establish its prima facie entitlement to summary judgment based on its lack of coverage defense “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), as the proof offered in support of this branch of its motion seeking summary judgment was not in admissible form (see LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant’s motion should have been denied in its entirety.

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

Steinhardt, J. (dissenting and voting to affirm the order in the following memorandum). Although I am in full agreement{**34 Misc 3d at 24} with the majority that plaintiff is not limited as to the choice of forum (A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [2005]), I would affirm the order because I believe plaintiff’s case should be dismissed with prejudice. The dismissal by the arbitrator in the prior proceeding involving the assignor herein should be binding on this court. It was previously determined that Klever Guaman was not present in the motor vehicle at the time and place of the accident that allegedly caused his injuries. The police report submitted in support of defendant’s motion clearly indicates that the only people present in the respective vehicles were the drivers. In other words, Guaman’s claim of being in the passenger seat of the car being driven by Joffre Gonzalez is belied by the police officer’s observation at the scene. Were the police officer to testify, that portion of the report would be admissible. The arrest report, wherein Guaman admits that he was not involved in the accident for which a provider sought to recover no-fault benefits, is, in this [*3]writer’s opinion, an admission against interest and, therefore, admissible evidence that may be considered on a motion for summary judgment. I would dismiss plaintiff’s complaint on the theory that the assignor is a person not entitled to recover.

Pesce, P.J., and Rios, J., concur; Steinhardt, J., dissents in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered January 5, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, 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, defendant appeals from an order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

It is undisputed that defendant timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; 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]). The record establishes that plaintiff’s responses to defendant’s verification requests failed to provide the information which defendant had requested, in that plaintiff merely stated that the supplies at issue had been provided pursuant to a doctor’s prescription and did not advise defendant of the name of the doctor who had issued the prescription or where the doctor was located so that defendant could try to obtain the requested information from the prescribing doctor (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint as premature should have been granted, as defendant’s time to pay or deny the claim had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). In light of the foregoing, we reach no other issue.

Pesce, P.J., and Weston, J., concur.

Steinhardt, J., dissents in a separate memorandum. [*2]

Steinhardt, J., dissents and votes to affirm the order in the following memorandum:

Although I am in agreement with my learned colleagues regarding the timeliness of the mailings of defendant’s request and follow-up request for verification, I disagree with the outcome arrived at by the majority. The information sought by defendant from plaintiff, i.e., 1) an initial report from the referring physician and 2) a letter of medical necessity from the referring physician, were never within plaintiff supply company’s possession. In clear and concise language, it so advised defendant. Defendant neither revised its verification request nor paid the claim. Based on the outlined scenario, in the majority’s view, the time for defendant to pay or deny the claim would never begin to run and the claim would be premature forever. In my opinion, plaintiff responded to defendant’s request and follow-up request in a timely manner and defendant neither paid nor denied the claim that forms the subject matter of plaintiff’s complaint within 30 days. Consequently, plaintiff is entitled to summary judgment in its favor.
Decision Date: September 19, 2011

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, Kings County (Sylvia G. Ash, J.), entered December 23, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

The nonjury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant’s peer review report into evidence, precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 30, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary
judgment dismissing the complaint, arguing that it had properly reimbursed plaintiff for the acupuncture services it had rendered, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services as those billed for herein. The Civil Court granted plaintiff’s motion, stating that defendant had failed to submit the applicable fee schedule to the court.

We find that the workers’ compensation fee schedule, which is required by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff did not object to the fee schedule amount set forth by the defense, nor contest the timely denial of the claims, so much of defendant’s motion as sought summary judgment dismissing the complaint as to these claims is granted. [*2]

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $160.56 for the initial acupuncture visit on September 2, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and which denied defendant’s cross motion insofar as it sought summary judgment dismissing the complaint as to this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 27, 2009. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D
Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on June 27, 2007 (CCA 400). As the six-year statute of limitations for contract actions applies to the claims involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), the statute of limitations bars any claim that accrued prior to June 27, 2001.

In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant’s receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and [*2]must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant’s dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.

As the earliest date defendant could have received the $1,707.97 bill was June 6, 2001 and the earliest date that benefits could have become overdue with respect to this bill was July 7, 2001, we find that defendant failed to meet its burden of establishing, prima facie, that the time in which to sue has expired.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 30, 2009. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, 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 cross-moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Allegiance Health, Inc. (Allegiance). The Civil Court, in effect, denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance’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]). Defendant also submitted an affidavit of the chiropractor/acupuncturist who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly [*2]denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of our determination, we need not reach the remaining contentions raised on appeal.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered November 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered November 10, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it properly mailed initial and follow-up notices of independent medical examinations (IMEs) to the assignor and her attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the IME requests or the assignor’s failure to attend (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).

We have examined plaintiff’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 14, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 20, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 20, 2010, insofar as appealed from, reversed, with $10 costs, defendant’s motion for summary judgment granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), dated November 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), dated November 12, 2010, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of the information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]). In support of its motion for summary judgment, defendant established that its initial and follow-up verification letters were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). It being undisputed on the record that plaintiff failed to respond to defendant’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

In opposition, plaintiff’s conclusory denial of receipt of the initial verification letter was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d at 829-830; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1004 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 31, 2011