New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51678(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted; 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 and denied plaintiff’s cross motion for summary judgment.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant 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 second cause of action is 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 this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Defendant conceded in its moving papers that, on December 13, 2010, it had received the claim form underlying the first cause of action. To the extent defendant asserts that it took no action because the claim form was illegible, upon our review of the document, we find that the name of plaintiff’s assignor and the claim number are legible. Moreover, defendant had, at a minimum, previously received the claim underlying the second cause of action, which involves the same assignor and same claim number. Consequently, the claim form’s alleged illegibility does not constitute a valid ground for defendant’s inaction. As the record establishes that defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim, plaintiff was entitled to summary judgment upon the first cause of action (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted.

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