June 1, 2018

Pavlova v Travelers Ins. Co. (2018 NY Slip Op 50847(U))

Headnote

The court considered whether the defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature due to the plaintiff's failure to provide requested verification should be granted. The main issue decided was whether the defendant's proof was sufficient to demonstrate that it had properly mailed the verification requests and had not received the requested verification, making the action premature. The holding of the court was that the defendant's motion for summary judgment dismissing the complaint was denied, as there was a triable issue of fact as to whether the action was premature. Therefore, the order was modified to provide that defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Pavlova v Travelers Ins. Co. (2018 NY Slip Op 50847(U))

Pavlova v Travelers Ins. Co. (2018 NY Slip Op 50847(U)) [*1]

Pavlova v Travelers Ins. Co.

2018 NY Slip Op 50847(U) [59 Misc 3d 151(A)]

Decided on June 1, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-120 K C

Ksenia Pavlova, D.O., as Assignee of Lalputan, Sheldon, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul 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 20, 2015. 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 modified by providing that defendant’s 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 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, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate prima facie that it had properly mailed the verification requests at issue (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 support of its cross motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see [*2]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 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 modified by providing that 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: June 01, 2018