February 5, 2016

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))

Headnote

The relevant facts considered by the court were that EMC Health Products, Inc. was seeking to recover assigned first-party no-fault benefits from National Liability & Fire Insurance Company. The main issue decided was whether the causes of action in the complaint were premature because EMC Health Products, Inc. had failed to provide requested additional verification. The holding of the court was that there was a triable issue of fact as to whether the causes of action were premature, based on an affidavit submitted by EMC Health Products, Inc. In light of this, the court affirmed the order of the Civil Court, denying the branches of the defendant's cross motion seeking summary judgment dismissing the first, second, third, and fifth causes of action of the complaint.

Reported in New York Official Reports at Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U)) [*1]

EMC Health Prods., Inc. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 50132(U) [50 Misc 3d 137(A)]

Decided on February 5, 2016

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 11, 2016; it will not be published in the printed Official Reports.

Decided on February 5, 2016

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

PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-267 K C

EMC Health Products, Inc. as Assignee of HORACE WALLACE, Respondent,
against
National Liability & Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered October 2, 2013. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action of 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, an order of the Civil Court, insofar as appealed from by defendant and as limited by its brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action on the ground that these causes of action are premature because plaintiff had failed to provide requested additional verification.

In support of its cross motion, 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]) with respect to the claims at issue in plaintiff’s first, second, third and fifth causes of action. Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first, second, third and fifth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, 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 the first, second, third and fifth causes of action are 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., Weston and Solomon, JJ., concur.

Decision Date: February 05, 2016