September 22, 2017

TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))

Headnote

The relevant facts considered by the court in this case were that a medical supply company was seeking to recover no-fault benefits from an insurance company, and the insurance company had requested verification of the claim. The main issue decided by the court was whether the insurance company's motion for summary judgment dismissing the complaint should be granted on the grounds that the action was premature due to the provider's failure to provide the requested verification. The holding of the court was that there was a triable issue of fact as to whether the action was premature, as the provider's affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the insurance company. Therefore, the court reversed the order and denied the insurance company's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))

TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U)) [*1]

TAM Med. Supply Corp. v Travelers Ins. Co.

2017 NY Slip Op 51251(U) [57 Misc 3d 134(A)]

Decided on September 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 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
2014-1984 Q C

TAM Medical Supply Corp., as Assignee of Padilla, Bernardo, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Shana A. Kleinman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 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 was premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that it had properly mailed the initial and follow-up verification requests (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 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, 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 [*2]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: September 22, 2017