September 30, 2022

Parisien v Travelers Ins. Co. (2022 NY Slip Op 51136(U))

Headnote

The court considered the fact that the defendant in this case had moved for summary judgment to dismiss the complaint on the grounds that the action was premature as the plaintiff had failed to respond to the defendant's timely requests for additional verification. The main issue decided was whether the requested verification had been mailed to and received by the defendant, thus making the action premature. The holding of the case was that while the defendant demonstrated that they had timely mailed initial and follow-up requests for verification, the affidavit submitted by the plaintiff in opposition raised an issue of fact as to whether the requested verification had been received by the defendant. As a result, the court found that there was an issue of fact as to whether the plaintiff's action was premature, and denied the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at Parisien v Travelers Ins. Co. (2022 NY Slip Op 51136(U))

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

Jules Francois Parisien, M.D., as Assignee of Haynes, Jaeneane, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 6, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the action was premature as plaintiff had failed to respond to defendant’s timely requests for additional verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 6, 2019, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (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. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (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]). As a result, there is an issue of fact as to whether plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 30, 2022