September 15, 2017

Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))

Headnote

The court considered the fact that Tam Medical Supply Corp. was seeking to recover assigned first-party no-fault benefits, and the defendant, Hereford Insurance Co., moved for summary judgment dismissing the complaint on the ground of premature action due to failure to provide requested verification. The main issue decided was whether the requested verification remained outstanding. The holding of the court was that while the defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by the plaintiff in opposition to the defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the defendant. As a triable issue of fact existed as to whether the requested verification remained outstanding, the Civil Court properly denied the defendant's motion for summary judgment dismissing the complaint as premature. Thus, the order was affirmed.

Reported in New York Official Reports at Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))

Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U)) [*1]

Tam Med. Supply Corp. v Hereford Ins. Co.

2017 NY Slip Op 51196(U) [57 Misc 3d 131(A)]

Decided on September 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 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
2014-1901 K C

Tam Medical Supply Corp., as Assignee of Green, Jabron, Respondent,
against
Hereford Insurance Co., Appellant.

Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered June 10, 2014, the Civil Court denied defendant’s motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. Defendant appeals from so much of the order as denied its motion.

While defendant made a prima facie showing that it had not received the requested verification, 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]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint as 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, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017