Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51784(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 10, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim underlying the first cause of action and that it had timely and properly denied the claim underlying the second cause of action based upon plaintiff’s failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]), and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues, in effect, that the proof submitted in support of its cross motion was sufficient to give rise to a presumption that plaintiff had timely mailed the claim underlying the first cause of action (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, there is a triable issue of fact as to whether the claim underlying the first cause of action was timely submitted.

Contrary to plaintiff’s further contentions, defendant’s proof was sufficient to [*2]demonstrate, prima facie, that it had timely mailed initial and follow-up verification requests as to the claim underlying the second cause of action (see id.); that it had not received the requested verification; and that it had timely denied the claim on that ground (see id.). However, as plaintiff further argues, the affidavit submitted by plaintiff in support of its cross motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see id.). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification as to the second cause of action.

In view of the triable issues of fact, plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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