October 20, 2017

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))

Headnote

The court considered a case in which a medical supply corporation was seeking to recover first-party no-fault benefits from an insurance company. The insurance company had filed a motion for summary judgment to dismiss the complaint on the grounds that the action was premature because the medical supply corporation had failed to provide requested verification. The main issue decided was whether the requested verification had been mailed to and received by the insurance company, giving rise to a presumption. The holding of the court was that the affidavit submitted by the medical supply corporation was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the insurance company, creating a triable issue of fact as to whether the action was premature. The court reversed the order granting summary judgment to the insurance company and denied the motion for summary judgment, allowing the case to proceed.

Reported in New York Official Reports at Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U)) [*1]

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51408(U) [57 Misc 3d 143(A)]

Decided on October 20, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1997 K C

Active Care Medical Supply Corp., as Assignee of Saravia, Victor, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Kelly & Sheridan, LLP (Theresa A. Kelly, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 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 the action was premature because plaintiff had failed to provide requested verification.

As plaintiff argues, 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]). In light of the foregoing, there is a triable issue of fact as to whether the 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 SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 20, 2017