October 11, 2016

Performance Plus Med., P.C. v Nationwide Ins. (2016 NY Slip Op 51500(U))

Headnote

The main issue in this case was whether the provider had provided requested verification for a first-party no-fault benefits claim. The court considered the fact that the defendant had demonstrated that they had not received the requested verification, leading to their argument that the action was premature. The plaintiff argued that an affidavit submitted by the owner of the plaintiff company was sufficient to presume that the verification had been mailed to and received by the defendant. The court ultimately held that there was a triable issue of fact as to whether the action was premature, and reversed the order granting the defendant's motion for summary judgment, denying the motion to dismiss the complaint.

Reported in New York Official Reports at Performance Plus Med., P.C. v Nationwide Ins. (2016 NY Slip Op 51500(U))

Performance Plus Med., P.C. v Nationwide Ins. (2016 NY Slip Op 51500(U)) [*1]

Performance Plus Med., P.C. v Nationwide Ins.

2016 NY Slip Op 51500(U) [53 Misc 3d 139(A)]

Decided on October 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2766 Q C

Performance Plus Medical, P.C., as Assignee of Melanna Luckie, Appellant,
against
Nationwide Ins., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 4, 2013. 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 contention, defendant demonstrated 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, submitted 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 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 reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: October 11, 2016