September 8, 2017

JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))

Headnote

The court considered a provider's attempt to recover assigned first-party no-fault benefits from an insurance company, with the insurance company seeking summary judgment to dismiss the complaint. The main issue decided was whether the insurance company had paid the underlying claims in full and whether the provider had provided sufficient verification of the claims. The court held that while the insurance company had demonstrated payment of some claims, there was a triable issue of fact as to whether the provider had provided sufficient verification for the second cause of action, and therefore, the motion for summary judgment on that cause of action should have been denied. Overall, the court modified the order by denying the motion to dismiss the second cause of action and affirmed the decision in all other respects.

Reported in New York Official Reports at JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))

JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U)) [*1]

JCC Med., P.C. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51140(U) [57 Misc 3d 126(A)]

Decided on September 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1540 Q C

JCC Medical, P.C., as Assignee of Sanon, Edeline, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. De Martini & Yi, LLP (Bryan Visnius, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 4, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action 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 granted defendant’s motion for summary judgment dismissing the complaint.

We find no merit to plaintiff’s sole argument on appeal with respect to the branches of defendant’s motion seeking summary judgment dismissing the first, third and fourth causes of action—which the Civil Court granted on the ground that the underlying claims had been paid in full—that the proof defendant submitted was insufficient to establish the payment of these claims.

However, the branch of defendant’s motion seeking summary judgment dismissing the [*2]second cause of action should have been denied. While, contrary to plaintiff’s contention, defendant demonstrated, prima facie, that it had not received the requested verification, plaintiff correctly argues that the affidavit 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 cause of 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 the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017