2015 NY Slip Op 50482(U)
N.Y. App. Term 2nd
2015

Pierre Jean Jacques Renelique as Assignee of TIFFANY OVERTON, Appellant, against American Transit Ins. Co., Respondent.

2013-1578 Q C

Appellate Term of the Supreme Court of New York, Second Department, 2d, 11th and 13th Judicial Districts

March 26, 2015

2015 NY Slip Op 50482(U) | 47 Misc 3d 134(A)

WESTON, J.P., SOLOMON and ELLIOT, JJ.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 13, 2013. The order denied plaintiff‘s motion for summary judgment and granted defendant‘s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground of outstanding verification. The Civil Court denied plaintiff‘s motion and granted defendant‘s cross motion, finding that the action was premature since plaintiff had not responded to defendant‘s requests for additional verification.

CPLR 2219 (a) requires that an order deciding a motion recite the papers upon which the motion was decided (see Matter of Dondi, 63 NY2d 331, 339 [1984]). Although plaintiff‘s appellate brief indicates that plaintiff may have served papers in opposition to defendant‘s cross motion for summary judgment, the order appealed from recites that the court did not consider any papers opposing defendant‘s cross motion. As a result, this court‘s review is limited to plaintiff‘s motion for summary judgment and defendant‘s cross motion for summary judgment dismissing the complaint.

With respect to defendant‘s cross motion for summary judgment dismissing the complaint, the affidavits of defendant‘s no-fault examiner and mail room supervisor established that defendant had timely mailed (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]) its verification requests and follow-up verification requests. Defendant demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Thus, 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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff‘s action is premature. In light of the foregoing, plaintiff‘s contention that its motion for summary judgment should have been granted is rendered moot. Plaintiff‘s remaining contention is not properly before this court, as this argument is, on this record, being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Consequently, the Civil Court properly denied plaintiff‘s motion for summary judgment and granted defendant‘s cross motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: March 26, 2015