—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Rosa Maria Patrone of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2006, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate ” ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands. Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126
(3) due to plaintiff’s inadequate response to defendant’s discovery demands, its failure to amend or supplement the incomplete and/or inadequate responses which defendant rejected and its failure to offer any response to defendant’s supplemental interrogatories or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.

Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. [*2]Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its utterly inadequate response to defendant’s discovery demands, its failure to supplement or amend its responses after they were rejected by defendant, its failure to offer any response to defendant’s supplemental interrogatories and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 28, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Appeal from so much of the order as granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to, inter alia, strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide discovery. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce plaintiff’s principal for an examination before trial. The instant appeal by plaintiff ensued.

We do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff’s motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff’s motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant’s argument. Consequently, the branch of the order which denied plaintiff’s [*3]
motion for summary judgment is affirmed (see id.; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

Moreover, since plaintiff failed to submit written opposition to defendant’s cross motion to compel disclosure, that branch of the order which granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce Philip D. Goldstein for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion to compel disclosure is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands.
Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126 (3) due to plaintiff’s failure to respond to defendant’s discovery demands or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.

Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is [*2]a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its failure to respond to defendant’s discovery demands and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

[*1]

Supreme Court, Appellate Term, Second Department, September 14, 2007

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for appellant. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**17 Misc 3d at 41} OPINION OF THE COURT

Memorandum.

{**17 Misc 3d at 42}Order affirmed without costs and, upon searching the record, summary judgment granted to defendant dismissing plaintiff’s cause of action with respect to those portions of plaintiff’s claims seeking reimbursement of the unpaid balance of 23 acupuncture sessions conducted between February 9 and April 4, 2004.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). While defendant asserted that plaintiff did not prove a prima facie case because plaintiff, a provider of acupuncture services performed by a licensed acupuncturist, did not demonstrate that the fees it charged were within the prevailing fees for acupuncture services performed by a licensed acupuncturist in plaintiff’s geographic location (see 11 NYCRR 68.5 [b]), such contention lacks merit since plaintiff’s prima facie case does not require such a showing. Accordingly, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to plaintiff’s motion for summary judgment, which sought to recover on four claims submitted to defendant with respect to 30 sessions of acupuncture performed from February 9 through May 12, 2004, defendant sufficiently demonstrated that it timely mailed the [*2]denial of claim forms at issue based upon its standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff was not entitled to summary judgment on the claims pertaining to the seven sessions of acupuncture conducted from April 7 through May 12, 2004, which were denied based upon the results of an independent medical examination, since defendant’s papers were sufficient to demonstrate the existence of an issue of fact with respect to defendant’s defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

Defendant’s opposing papers also demonstrated that defendant denied reimbursement for the unpaid balance of the remaining 23 acupuncture sessions conducted between February 9 and April 4, 2004 on the ground that the fees charged by{**17 Misc 3d at 43} plaintiff exceeded the “maximum allowance under the applicable fee schedule[s].” We agree that it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount to which plaintiff was entitled upon the subject 23 sessions (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, there is no merit to plaintiff’s assertion that because the fees charged were reasonable and were within the range of prevailing fees for licensed acupuncturists in the geographic area in which plaintiff operated, defendant should have paid the entire amount for these 23 sessions (id.; see also Ops Gen Counsel NY Ins Dept, No. 04-10-03 [Oct. 2004]).

Further, since it is undisputed that defendant has fully paid plaintiff $673.90 for the 23 acupuncture sessions, the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing plaintiff’s cause of action to the extent that it seeks additional reimbursement for the 23 acupuncture sessions (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Rios, J. (concurring in the result in the following memorandum). I am constrained to concur based upon the majority holding in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., and Belen, J., concur; Rios, J., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,340.30 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff. In our opinion, the order should be modified as indicated above for the reasons set forth in Multiquest, P.L.L.C. v Allstate Ins. Co. ( Misc 3d , 2007 NY Slip Op [No. 2006-312 Q C], decided herewith).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,236.99 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff.

CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings. Without such pleadings, unless the record is sufficiently complete (Greene v Wood, 6 AD3d 976 [2004]), the motion is procedurally defective (Wider v Heller, 24 AD3d 433 [2005]), and the court may deny it even in the absence of a party raising the objection (see General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]). Accordingly, we conclude that, under the circumstances presented, the matter should have been denied without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, supra). In view of the foregoing, we do not reach the parties’ contentions with regard to the merits of the motion (see id.).

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: September 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,236.99 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff. In our opinion, the order should be modified as indicated above for the reasons set forth in Multiquest, P.L.L.C. v Allstate Ins. Co. ( Misc 3d , 2007 NY Slip Op [No. 2006-312 Q C], decided herewith).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 12, 2007

[*1]

Supreme Court, Appellate Term, Second Department, September 12, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Belesi & Conroy, P.C., Garden City (Matthew J. Conroy of counsel), for respondent.

{**17 Misc 3d at 38} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order entered December 8, 2005 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment granted.

In this action by a provider to recover first-party no-fault benefits for an August 17, 1999 psychological evaluation of its assignor, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment arguing, inter alia, that plaintiff was ineligible to receive reimbursement of no-fault benefits because plaintiff was fraudulently incorporated, relying on State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). Finding, inter alia, that the defense of “improper incorporation” was waived because defendant failed to assert the defense in its denial of claim form or in its answer, the court below awarded plaintiff summary judgment.

As defendant raises no issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with [*2]respect thereto.

A regulation which took effect in 2002, after the services at issue herein were provided, states, “A provider of health care services is not eligible for reimbursement under section{**17 Misc 3d at 39} 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). This regulation has been held to bar reimbursement of no-fault benefits without regard to when the services were rendered (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). Such a defense is not waived by the failure to assert it in a denial of claim form (Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]) nor is it precluded as a result of an untimely denial (Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]). Contrary to the determination of the court below, the defendant’s answer, as amended by order dated September 9, 2005, asserted the defense that plaintiff was “not entitled to receive payment as it was not properly formed in that it failed to meet the applicable New York State and local licensing requirements necessary to perform such services in New York.” We note in passing that even if defendant had failed to interpose the defense in its answer, a court may nevertheless grant a motion for summary judgment based on an unpleaded defense (Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]) where, as here, plaintiff did not assert any surprise or prejudice thereby (Ingordo v Square Plus Operating Corp., 276 AD2d 528 [2000]) and had “ample opportunity” to contest the defense in its opposition to the motion (Cangialosi v Hallen Constr. Corp., 282 AD2d 565, 566 [2001]; Lynbrook Glass & Architectural Metals Corp. v Elite Assoc., 225 AD2d 525, 527 [1996]).

Although Mallela involved a provider which was a professional service corporation (see Business Corporation Law art 15) and the instant plaintiff is a professional service limited liability company (see Limited Liability Company Law art 12), the requirements of membership, professional licensing, and filing are substantially the same. As a result, 11 NYCRR 65-3.16 (a) (12) clearly applies to professional service limited liability companies. Limited Liability Company Law § 1203 (b) requires that a member of such a company be licensed for any professional services the company is organized to provide. There is no dispute that plaintiff’s articles of organization stated that the company was to provide, inter alia, psychological services and{**17 Misc 3d at 40} listed a licensed psychologist as the provider of those services. However, the named psychologist testified under oath that she was never an owner or member of plaintiff and that she never received a stock certificate or any compensation based on an ownership interest.

Defendant also proved that plaintiff’s ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist, and no other, continued to be listed as a member and manager of plaintiff. Not only was the foregoing sufficient to defeat plaintiff’s motion for summary judgment, it also satisfied defendant’s burden of proof on its cross motion for summary judgment by demonstrating that plaintiff performed psychological services in violation of Limited Liability Company Law §§ 1203 and 1207.

Plaintiff did not dispute this proof, but sought to excuse any violation of the statute by proffering a hearsay affidavit of a person who purported to relate the nonfraudulent intentions of [*3]plaintiff’s original owner. Even if the affidavit presented a reasonable excuse for the failure to obtain an affidavit from plaintiff’s original owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]; cf. Oddo v Edo Mar. Air, 34 AD3d 774 [2006]), it failed to excuse the initial fraudulent act of listing the psychologist as a member and manager of plaintiff or plaintiff’s continuing to so list the psychologist through successive changes of ownership including the period when the services herein were provided. Consequently, defendant was entitled to summary judgment upon its cross motion (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006], supra).

In light of the foregoing, we reach no other issue.

Pesce, P.J., Rios and Belen, JJ., concur.

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Zara G. Friedman of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated January 27, 2006, as granted the motion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue, and, upon reargument, vacated so much of a prior order of the same court dated July 8, 2005, as denied that plaintiff’s motion for summary judgment on the first cause of action and granted that plaintiff’s motion.

Ordered that the order dated January 27, 2006 is reversed insofar as appealed from, on the law, with costs, the motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue, is denied, so much of the order dated July 8, 2005, as denied the motion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, for summary judgment on the first cause of action is reinstated and, upon searching the record (see CPLR 3212 [b]), that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action is granted. [*2]

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to pay benefits within the 30-day requirement renders the benefits overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]). The 30-day period may be extended if within 10 days from receipt of a completed application, an insurer demands additional verification of a claim (see 11 NYCRR former 65.15 [d] [1]; [e]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568,569 [2004]). If the requested verification has not been supplied to the insurer within 30 days from the insurer’s original request, the insurer shall issue a follow-up request within 10 days of the insured’s failure to respond (see 11 NYCRR former 65.15 [e] [2]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]). “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570, see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c], 65-3.8 [a] [1]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]). “When a hospital fails to respond to a verification request, the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the hospital is premature” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570).

Here, it is undisputed that the defendant made timely requests for additional information. The plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten (hereinafter the plaintiff), claims that it sent the requested material on December 21, 2004, by certified mail, and that the material was received by the defendant the next day. Assuming that sufficient evidence exists that the requested material was mailed (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]), the 30-day period within which the defendant was required to either pay or deny the claim did not begin to run until December 22, 2004, the date the verification material was allegedly received (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570), and did not expire until January 21, 2005. Since the plaintiff commenced its lawsuit by the filing of a summons with notice and verified complaint on November 19, 2004, approximately two months before the defendant was required to pay or deny the claim, the plaintiff’s action was brought prematurely and the defendant was entitled to summary judgment dismissing the plaintiff’s first cause of action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). This Court may award this relief even though the defendant did not appeal from the original order denying that branch of its cross motion which was for summary judgment dismissing the first cause of action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110 [1984]; Wolf v Atai, 139 AD2d 729,731 [1988]).

The defendant’s remaining argument, regarding a protective order, has been rendered academic. Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.