Opinion
2014-1850 Q C
09-22-2017
TAM Medical Supply Corp., as Assignee of Budhram, Dhandai, Appellant, v. Tri State Consumers Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Laurie DiPreta (Rhonda H. Barry, Esq.), for respondent (no brief filed).
PRESENT: :
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.
Law Office of Laurie DiPreta (Rhonda H. Barry, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered July 11, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
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 on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff's failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). Contrary to plaintiff's contention, defendant demonstrated, prima facie, that it had not received the requested verification. However, as plaintiff further 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 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 plaintiff provided the requested verification.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 22, 2017