Opinion
No. 2013–1336 Q C.
06-03-2016
GREAT HEALTH CARE CHIROPRACTIC, P.C., as Assignee of Carlos Thomas, Respondent, v. HEREFORD INSURANCE CO., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. By order entered April 25, 2013, insofar as appealed from and as limited by the brief, the Civil Court denied defendant's motion.
In support of defendant's motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ). Defendant also demonstrated prima facie that it 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, in opposition to the motion, plaintiff submitted an affidavit from plaintiff's owner, which affidavit 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 Healing Health Prods., Inc. v. New York Cent. Mut. Fire Ins. Co., 44 Misc.3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.