Tam Med. Supply Corp. v. Hereford Ins. Co.

Full title: Tam Medical Supply Corp., as Assignee of Green, Jabron, Respondent, v…

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

Date published: Sep 15, 2017

2017 N.Y. Slip Op. 51196 (N.Y. App. Term 2017)

66 N.Y.S.3d 655

Opinion

2014-1901 K C

09-15-2017

Tam Medical Supply Corp., as Assignee of Green, Jabron, Respondent, v. Hereford Insurance Co., Appellant.

Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.

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

PRESENT: :

Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant.

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order, insofar as appealed from, 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 on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered June 10, 2014, the Civil Court denied defendant's motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. Defendant appeals from so much of the order as denied its motion.

While defendant made a prima facie showing that it had not received the requested verification, 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 St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint as 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, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 15, 2017