Opinion
No. 2013–1720 Q C.
06-06-2016
GREAT HEALTH CARE CHIROPRACTIC, P.C., as Assignee of Carlos Thomas, Appellant, v. HEREFORD INSURANCE CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 1, 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 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, by order entered July 1, 2013, the Civil Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
In support of the cross motion, 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 cross 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 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.