Opinion
No. 2014–647 Q C.
09-27-2016
ISLAND LIFE CHIROPRACTIC, P.C., as Assignee of Gabriel Lowers, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 27, 2014. 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 modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff's arguments on appeal, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that initial and follow-up verifications requests had been properly mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ), and to demonstrate that defendant had not received the requested verification, and, thus, that plaintiff's action is premature (see Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] ). However, plaintiff submitted an affidavit from plaintiff's owner, which, as plaintiff argues, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 [2001] ). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Compas Med., P.C. v. Praetorian Ins. Co., 49 Misc.3d 152[A], 2015 N.Y. Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.