September 27, 2016

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))

Headnote

The court considered the denial of the plaintiff's motion for summary judgment and the granting of the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the proof submitted by the defendant was sufficient to demonstrate that initial and follow-up verifications requests had been properly mailed, and to prove that the defendant had not received the requested verification. The holding of the case was that there was a triable issue of fact as to whether the action was premature, and therefore the defendant's cross motion for summary judgment dismissing the complaint was denied. The order was modified accordingly.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U)) [*1]

Island Life Chiropractic, P.C. v Travelers Ins. Co.

2016 NY Slip Op 51413(U) [53 Misc 3d 133(A)]

Decided on September 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-647 Q C

Island Life Chiropractic, P.C., as Assignee of GABRIEL LOWERS, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 27, 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 arguments on appeal, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that initial and follow-up verifications requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant 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, plaintiff submitted an affidavit from plaintiff’s owner, which, as plaintiff argues, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). 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: September 27, 2016