JCC Med., P.C. v. State Farm Mut. Auto. Ins. Co.

Full title: JCC Medical, P.C., as Assignee of Sanon, Edeline, Appellant, v. State Farm…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Sep 8, 2017

2017 N.Y. Slip Op. 51140 (N.Y. App. Term 2017)

66 N.Y.S.3d 653

Opinion

2014-1540 Q C

09-08-2017

JCC Medical, P.C., as Assignee of Sanon, Edeline, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. De Martini & Yi, LLP (Bryan Visnius, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.

De Martini & Yi, LLP (Bryan Visnius, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 4, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action 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 granted defendant's motion for summary judgment dismissing the complaint.

We find no merit to plaintiff's sole argument on appeal with respect to the branches of defendant's motion seeking summary judgment dismissing the first, third and fourth causes of action—which the Civil Court granted on the ground that the underlying claims had been paid in full—that the proof defendant submitted was insufficient to establish the payment of these claims.

However, the branch of defendant's motion seeking summary judgment dismissing the second cause of action should have been denied. While, contrary to plaintiff's contention, defendant demonstrated, prima facie, that it had not received the requested verification, plaintiff correctly argues that the affidavit submitted 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether this cause of 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]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. Paul Kenny Chief Clerk Decision Date: September 08, 2017