PFJ Med. Care, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50361(U))

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action and denied plaintiff’s cross motion for summary judgment.

ORDERED that so much of the appeal as is from the denial of plaintiff’s cross motion is dismissed as no appeal lies from an order entered upon the consent of the appealing party (see CPLR 5511); and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that the action was premature due to plaintiff’s failure to provide requested verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 2, 2019, insofar as appealed from by plaintiff, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action, and, on consent, accepted plaintiff’s untimely cross motion as opposition only, thereby implicitly denying it.

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]), that it had not received the requested verification, and that it had timely denied plaintiff’s claims on that ground (see 11 NYCRR 65-3.5 [o]). 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]).

Accordingly, the order, insofar as appealed from and reviewed, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are denied.

GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.