Reported in New York Official Reports at Matter of Global Liberty Ins. Co. v McMahon (2019 NY Slip Op 03692)
| Matter of Global Liberty Ins. Co. v McMahon |
| 2019 NY Slip Op 03692 [172 AD3d 500] |
| May 9, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Global Liberty Insurance Co.,
Appellant, v Mark S. McMahon, M.D., as Assignee of Rudy Corniel, Respondent. |
Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Samandarov & Associates, P.C., Floral Park (Eli Shmulik of counsel), for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 11, 2018, which denied Global Liberty Insurance Co.’s (Global) petition to vacate the master arbitrator’s award, dated August 15, 2018, affirming the lower arbitrator’s award in favor of respondent, dated April 17, 2018, dismissed the proceeding and confirmed the award, unanimously reversed, on the law, without costs, the petition granted, the award vacated, and the matter remanded to the lower arbitrator for a new arbitration to be conducted consistent with this decision.
Respondent submitted to Global a claim for payment under the No-Fault Law (Insurance Law art 51) in the amount of $5,813,81 for arthroscopic surgery respondent had performed on Global’s insured. Global approved the claim only up to the amount of $2,980.44, basing its position on the American Medical Association’s CPT Assistant newsletter.[FN*] After Global partially paid the claim, respondent commenced a no-fault arbitration, seeking payment of the $1,342.52 balance. The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.
The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1 [a] [1]; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 [2d Dept 2015], affd 27 NY3d 22 [2016]). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant is incorrect as a matter of law (see 11 NYCRR 65-4.10 [a] [4]). We therefore grant the petition to vacate the award and remand the matter to the lower arbitrator for a new arbitral proceeding, at which relevant portions of CPT Assistant shall be given due consideration. Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.
Footnotes
Footnote *:CPT is an acronym for Current Procedural Terminology.
Reported in New York Official Reports at Global Liberty Ins. Co. v Tyrell (2019 NY Slip Op 03691)
| Global Liberty Ins. Co. v Tyrell |
| 2019 NY Slip Op 03691 [172 AD3d 499] |
| May 9, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Global Liberty Ins. Co., Appellant, v Sloan Tyrell et al., Defendants, and Dohor Chiropractic Services, P.C., et al., Respondents. |
The Law Office of Jason Tenenbaum, P.C., Garden City (Nadia Rahman of counsel), for appellant.
Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for respondents.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 3, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants-respondents and a default judgment against the remaining defendants on its complaint seeking a declaration of noncoverage, and for leave to amend the complaint to add Yang Zhi Gang, MD and Jamron Colin as defendants, unanimously modified, on the law and the facts, to grant the motion for leave to amend, and otherwise affirmed, without costs.
Plaintiff seeks a declaration that defendant Sloan Tyrell failed to appear at duly noticed medical examinations (IMEs), which constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident by any parties potentially entitled to benefits under Insurance Law § 5103 or their assignees (11 NYCRR 65-1.1 [a]; see generally Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). In support, plaintiff submitted an attorney’s affirmation annexing documents and affidavits of its claims adjuster and an employee of a company that handles plaintiff’s no fault notice mailings, and an affirmation of the doctor whom plaintiff designated to conduct the IME. Contrary to defendants’ contentions, the court properly considered sworn statements bearing captions of other proceedings arising out of the same accident (see CPLR 2101 [f]).
Plaintiff did not proffer sufficient evidence to establish prima facie that it provided the insured with proper notice of the location of the scheduled examinations, since the copies of the letters submitted through an attorney affirmation appear to show an address for the doctor’s office that differed from the office address provided by the doctor in her affirmation. Plaintiff’s effort to correct the deficiency by submitting “clearer” copies in reply was insufficient, since there is no evidence that the insured received a clear copy.
As for the motion for leave to amend, plaintiff submitted a proposed amended complaint setting forth a cognizable cause of action against the proposed additional defendants, who allegedly provided the same claimant with services in connection with the same accident. Thus permissive joinder was appropriate (CPLR 1002 [b]; see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536, 537 [2d Dept 2002]), and, absent any showing of prejudice or undue delay, leave to amend should have been freely granted (CPLR 3025 [b]; Fellner v Morimoto, 52 AD3d 352, 354 [1st Dept 2008]). Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.
Reported in New York Official Reports at Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))
| Bronx Chiropractic Care, P.C. v State Farm Ins. |
| 2019 NY Slip Op 50700(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-1053 K C
against
State Farm Insurance, Respondent.
Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered October 20, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, [*2]2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Zen Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50699(U))
| Zen Acupuncture, P.C. v Allstate Ins. Co. |
| 2019 NY Slip Op 50699(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-914 K C
against
Allstate Insurance Company, Respondent.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered March 27, 2017. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.
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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s cross motion for summary judgment.
Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50697(U))
| Pavlova v Hartford Ins. Co. |
| 2019 NY Slip Op 50697(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-688 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 14, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Pavlova, as Assignee of George Brathwaite v Hartford Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-600 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))
| LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. |
| 2019 NY Slip Op 50696(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-653 K C
against
State Farm Mutual Automotive Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 30, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . [*2]that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As plaintiff’s remaining contention lacks merit, plaintiff has not provided any basis to disturb the Civil Court’s order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50695(U))
| Pavlova v Hartford Ins. Co. |
| 2019 NY Slip Op 50695(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-641 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 1, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Pavlova, as Assignee of George Brathwaite v Hartford Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-600 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))
| Pavlova v Hartford Ins. Co. |
| 2019 NY Slip Op 50693(U) [63 Misc 3d 147(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-600 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 1, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form [*2]at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Diamond Law Group, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 16, 2016. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff’s [*2]assignor had failed to appear for the scheduled IMEs.
The affirmations and affidavits defendant submitted from the medical providers who were to perform the IMEs of plaintiff’s assignor were sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Solution Bridge, Inc. v Nationwide Ins. (2019 NY Slip Op 50689(U))
| Solution Bridge, Inc. v Nationwide Ins. |
| 2019 NY Slip Op 50689(U) [63 Misc 3d 146(A)] |
| Decided on May 3, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-311 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 7, 2016. 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 plaintiff had failed to provide requested verification.
Plaintiff correctly argues that the affidavit it submitted 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]) and thus that there is a triable issue of fact as to whether the verification had been provided.
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.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019