September 22, 2017

Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York in which the defendant's motion for summary judgment dismissing the complaint was granted. The main issue in the case was whether the action to recover assigned first-party no-fault benefits was premature due to the plaintiff's failure to provide requested verification. The court held that while the defendant had demonstrated prima facie evidence that it had properly mailed the initial and follow-up verification requests and had not received the requested verification, the affidavit submitted by the plaintiff in opposition to the motion was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the defendant. As a result, the court found that there was a triable issue of fact as to whether the action was premature and reversed the order, denying the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U))

Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U)) [*1]

Medex Health Supply, Inc. v Travelers Ins. Co.

2017 NY Slip Op 51261(U) [57 Misc 3d 135(A)]

Decided on September 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 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
2014-2105 Q C

Medex Health Supply, Inc., as Assignee of Whitfield, Cheana, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Aloy O. Ibuzor (Marcy Miller-Melchiona, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 5, 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.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that it had properly mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff 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, 50 AD3d 1123). 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 [*2]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: September 22, 2017