Opinion
2018-837 K C
08-28-2020
SOLUTION BRIDGE, INC., as Assignee of Castro, Shantel, Appellant, v. NATIONWIDE INS., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
ORDERED that the order is modified by providing that defendant's 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, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff had failed to appear for examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered January 23, 2018, the Civil Court granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff's failure to provide requested verification and denied plaintiff's cross motion.
Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (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 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 id. ). In light of the foregoing, there is a triable issue of fact as to whether 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] ). Plaintiff's remaining contention lacks merit (see Frankel v. Stavsky , 40 AD3d 918 [2007] ).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.