October 13, 2016

Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))

Headnote

The relevant facts considered by the court were that TAM Medical Supply Corp. was seeking to recover assigned first-party no-fault benefits from National Liability & Fire Insurance Company. The main issue decided was whether the defendant had demonstrated that it had not received the requested verification, and whether the plaintiff's action was premature. The court found that the affidavit by plaintiff's owner was sufficient to give rise to a presumption that the requested verification had been mailed to the defendant, creating a triable issue of fact as to whether the action was premature. The holding of the court was that defendant's cross motion for summary judgment dismissing the complaint was denied, and the order was affirmed with modification.

Reported in New York Official Reports at Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))

Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U)) [*1]

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51532(U) [53 Misc 3d 141(A)]

Decided on October 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-635 Q C

TAM Medical Supply Corp., as Assignee of MELISA ABDOUL, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, defendant demonstrated, prima facie, that it had not received the requested verification and, thus, that plaintiff’s 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 by plaintiff’s owner was sufficient to give rise to a presumption that the requested verification had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether this action is 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 is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 13, 2016