November 13, 2015

T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))

Headnote

The main issue in this case was whether plaintiff T & J Chiropractic, P.C. was entitled to recover assigned first-party no-fault benefits from defendant American Transit Ins. Co. Plaintiff had moved for summary judgment, while defendant cross-moved for summary judgment dismissing the complaint on the grounds that plaintiff had failed to provide requested verification. The court considered the affidavits submitted by both parties, with defendant demonstrating prima facie that it had not received the requested verification, and plaintiff's owner submitting an affidavit to give rise to a presumption that the verification had been mailed to and received by defendant. The court held that there was a triable issue of fact as to whether the action was premature, and thus modified the order by providing that defendant's cross motion for summary judgment dismissing the complaint was denied. Therefore, the court affirmed the order, with the modification, without costs.

Reported in New York Official Reports at T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))

T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U)) [*1]

T & J Chiropractic, P.C. v American Tr. Ins. Co.

2015 NY Slip Op 51673(U) [49 Misc 3d 146(A)]

Decided on November 13, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-907 Q C

T & J Chiropractic, P.C. as Assignee of WASEEM AKHTAR, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff had failed to provide requested verification.

In support of its cross motion, defendant submitted an affidavit by its no-fault examiner which was sufficient to demonstrate prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015