December 19, 2017

Gentlecare Ambulatory Anesthesia Servs. v Travelers Ins. Co. (2017 NY Slip Op 51802(U))

Headnote

The relevant facts considered by the court in this case were that the defendant, an insurance company, had denied a provider's claim for first-party no-fault benefits based on the provider's alleged failure to provide requested verification. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint. The holding of the court was that the denial of the defendant's motion for summary judgment was affirmed because the plaintiff had submitted an affidavit in opposition to the motion that was sufficient to create a presumption that the requested verification had been mailed to and received by the defendant, thus creating a triable issue of fact as to whether the action was premature. Therefore, the court held that the denial of the defendant's motion for summary judgment was appropriate.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v Travelers Ins. Co. (2017 NY Slip Op 51802(U))

Gentlecare Ambulatory Anesthesia Servs. v Travelers Ins. Co. (2017 NY Slip Op 51802(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v Travelers Ins. Co.

2017 NY Slip Op 51802(U) [58 Misc 3d 135(A)]

Decided on December 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 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
2015-436 Q C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Brumaire, Yanick, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Miriam Granov, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered November 18, 2014. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s contention, the Civil Court correctly denied defendant’s motion for summary judgment, which was based upon defendant’s allegation that plaintiff had failed to provide requested verification. While defendant made a prima facie showing that it had not received the requested verification, the affidavit plaintiff 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 affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017