GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co. (2012 NY Slip Op 52195(U))

GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co.

2012 NY Slip Op 52195(U) [37 Misc 3d 138(A)]

Decided on November 30, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through December 10, 2012; it will not be published in the printed Official Reports.

GNK Medical Supply, Inc., a/a/o Oswald Tucker, Plaintiff-Respondent,

against

Tri-State Consumer Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Order (Manuel J. Mendez, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, the evidentiary proof submitted by defendant-insurer was sufficient to establish, prima facie, that its initial and follow-up verification letters were timely and properly mailed to the plaintiff medical provider's attorney (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]), as authorized by plaintiff's counsel's prior correspondence to defendant (see St. Vincent's Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]). It being undisputed that plaintiff failed to respond to these verification requests, defendant established 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 attorney's conclusory denial of receipt of the verification letters was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]). We also reject plaintiff's claim that 11 NYCRR 65-3.6(b) required defendant to issue a delay letter to both plaintiff and its attorney, since that requirement applies only in circumstances, not here present, where information is sought from a party other than the applicant (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 30, 2012