Opinion
2012-2098 Q C
03-17-2015
Longevity Medical Supply, Inc. as Assignee of STANLEY CHANOINE, Appellant, v. Praetorian Ins. Co., Respondent.
PRESENT: : , ALIOTTA and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. 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 the branch of plaintiff's motion seeking summary judgment upon plaintiff's first cause of action is granted and 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff's motion and granted defendant's cross motion.
The affidavit submitted by plaintiff's owner was sufficient to establish plaintiff's prima facie entitlement to summary judgment upon its first cause of action (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). "[D]efendant's mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff's proof of mailing" (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff's first cause of action.
In support of the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff's second cause of action is premature (see 11 NYCRR 65-3.8 [a]; 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 one of plaintiff's employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking summary judgment upon plaintiff's first cause of action is granted and defendant's cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2015