August 11, 2017

Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51022(U))

Headnote

The court considered an order granting the defendant's motion for summary judgment in a case where a provider was seeking to recover first-party no-fault benefits. The main issue decided was whether the action was premature due to the plaintiff's failure to provide requested verification. The court held that there was a triable issue of fact as to whether the action was premature, as the plaintiff's affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the defendant. Therefore, the court reversed the order and denied the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51022(U))

Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51022(U)) [*1]

Renelique v American Tr. Ins. Co.

2017 NY Slip Op 51022(U) [56 Misc 3d 137(A)]

Decided on August 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 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
2014-1538 Q C

Pierre Jean Jacques Renelique, as Assignee of Nathalia Brown, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 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 is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant demonstrated that it had not received the requested verification and, thus, that plaintiff’s 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In view of the foregoing, there is a triable issue of fact as to whether this 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: August 11, 2017