Vladenn Med. Supply Corp. v. Travelers Ins. Co.

Full title: Vladenn Medical Supply Corp. as Assignee of DONALD AUDOUIS, Appellant, v…

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

Date published: Mar 17, 2016

2016 N.Y. Slip Op. 50381 (N.Y. App. Term 2016)

2016 N.Y. Slip Op. 50508

36 N.Y.S.3d 410

Opinion

2013-1371 Q C

03-17-2016

Vladenn Medical Supply Corp. as Assignee of DONALD AUDOUIS, Appellant, v. Travelers Insurance Company, Respondent.

PESCE, P.J., ALIOTTA and ELLIOT, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 21, 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment dismissing the complaint as premature because plaintiff had failed to provide requested verification.

In support of its cross 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 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 employee, 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 Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 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 Elliot, JJ., concur. Decision Date: March 17, 2016