March 16, 2016

Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))

Headnote

The relevant facts in this case were that Tam Medical Supply Corp., as assignee of DOR GUY MARCEL, appealed from an order of the Civil Court of the City of New York, Queens County, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. The main issue decided by the court was whether the action by the provider to recover assigned first-party no-fault benefits was premature due to the failure to provide requested verification. The holding of the court was that there is a triable issue of fact as to whether the action is premature because plaintiff had submitted an affidavit from the owner, which was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant. Therefore, the court modified the order by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))

Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U)) [*1]

Tam Med. Supply Corp. v American Tr. Ins. Co.

2016 NY Slip Op 50369(U) [51 Misc 3d 127(A)]

Decided on March 16, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1497 Q C

Tam Medical Supply Corp., as Assignee of DOR GUY MARCEL, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 22, 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint as premature because plaintiff had failed to provide requested verification.

In support of its cross motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated 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 this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 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 Elliot, JJ., concur.

Decision Date: March 16, 2016