Excel Surgery Ctr., L.L.C. v. Fiduciary Ins. Co. of Am.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 3, 2017
• Docket: 2017 NYSlipOp 50408(U)
• Status: Published

Opinion

Excel Surgery Center, L.L.C., as Assignee of Hector Trinidad, Appellant, 

against

Fiduciary Insurance Company of America, Respondent.

Law Office of Gabriel & Shapiro, LLC, Steven F. Palumbo, Esq., for appellant. Rubin, Fiorella & Friedman, LLP, Dean G. Aronin, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated May 28, 2015. The order granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature. Plaintiff appeals from an order of the District Court which granted defendant's motion.

It is undisputed that defendant timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its verification request and follow-up verification request to plaintiff and that plaintiff failed to provide the information requested. Rather, in response to defendant's verification requests, plaintiff informed defendant, by letter, that plaintiff was an ambulatory facility and, as such, did "not possess all the medical records," advising defendant to "request any additional information directly from the treating provider." Plaintiff's response did not refer to any specific request or state that plaintiff was not in [*2]possession of any of the items requested by defendant. Thus, plaintiff did not demonstrate that it had sufficiently responded to defendant's verification requests (see D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Mount Sinai Hosp. v Auto One Ins. Co., 121 AD3d 869 [2014]).

As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that it had provided defendant with all of the requested verification items which were in plaintiff's possession, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.8 [a] [1]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U]; cf. Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Consequently, the District Court properly granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature.

Accordingly, the order is affirmed.

Iannacci, J.P., Tolbert and Brands, JJ., concur.

Paul Kenny

Chief Clerk
Decision Date: April 03, 2017