Opinion
2016-728 K C
11-09-2018
T & S MEDICAL SUPPLY CORP., as Assignee of Lacina Koller, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Law Offices of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
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, 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 January 27, 2016, the Civil Court granted defendant's motion.
In support of its motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's action is premature (see Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co. , 24 AD3d 492 [2005] ). However, in opposition to the 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 AD2d 679 [2001] ). In light of the foregoing, there is a triable issue of fact as to whether this 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] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.