Opinion
No. 2013–907QC.
11-13-2015
T & J CHIROPRACTIC, P.C. as Assignee of Waseem Akhtar, Appellant, v. AMERICAN TRANSIT INS. CO., Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. 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 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 on the ground that plaintiff had failed to provide requested verification.
In support of its cross motion, defendant submitted an affidavit by its no-fault examiner which was sufficient to demonstrate prima facie that it had not received the requested verification and, thus, that plaintiff's 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 plaintiff's owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 2001 ). In light of the foregoing, there is a triable issue of fact as to whether the 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 defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.