June 3, 2016

Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50858(U))

Headnote

The main issue in this case was whether the action to recover assigned first-party no-fault benefits was premature, as the defendant claimed, due to not receiving requested verification. The court considered the fact that the defendant had timely mailed the verification request and follow-up verification request and had not received the requested verification, which would support the defendant's claim. However, the plaintiff submitted an affidavit from the owner, giving rise to a presumption that the requested verification had been mailed to and received by the defendant, creating a triable issue of fact. The court ultimately held that there was a triable issue of fact as to whether the action was premature, and therefore affirmed the lower court's decision to deny the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50858(U))

Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50858(U)) [*1]

Great Health Care Chiropractic, P.C. v Hereford Ins. Co.

2016 NY Slip Op 50858(U) [51 Misc 3d 150(A)]

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1336 Q C

Great Health Care Chiropractic, P.C., as Assignee of CARLOS THOMAS, Respondent,
against
Hereford Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. By order entered April 25, 2013, insofar as appealed from and as limited by the brief, the Civil Court denied defendant’s motion.

In support of defendant’s motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also 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, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit 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 Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: June 03, 2016