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