Opinion
2016-679 K C
11-02-2018
Ksenia PAVLOVA, D.O., as Assignee of Jan Cedana, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant, defendant moved for summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 on the ground that that portion of the action is premature because plaintiff had failed to provide requested verification. Plaintiff appeals from so much of an order of the Civil Court entered January 27, 2016 as granted that branch of defendant's motion.
Contrary to plaintiff's contentions, defendant's proof was sufficient to demonstrate, prima facie, that so much of the complaint as sought to recover the sum of $3,399.51 is premature because it had properly mailed the verification requests at issue (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ) and had not received the requested verification. However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond , 50 AD3d 1123 ). In light of the foregoing, there is a triable issue of fact as to whether that portion of the action is premature (see Compas Med., P.C. v. Praetorian Ins. Co. , 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co. , 24 AD3d 492 [2005] ).
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $3,399.51 is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.