August 23, 2019

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51409(U))

Headnote

The relevant facts considered in this case are that Right Aid Medical Supply Corp. was seeking to recover assigned first-party no-fault benefits, and State Farm Mutual Automobile Insurance Co. moved for summary judgment dismissing the complaint on the ground that the action was premature. The main issue decided was whether plaintiff had provided the requested verification to defendant. The holding of the court was that the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding. The court held that the burden was on plaintiff to provide the requested verification, and since no testimony was presented, the Civil Court found for the defendant.

Reported in New York Official Reports at Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51409(U))

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51409(U)) [*1]

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

2019 NY Slip Op 51409(U) [64 Misc 3d 149(A)]

Decided on August 23, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-595 K C

Right Aid Medical Supply Corp., as Assignee of Marie, Alexandre, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Richard T. Lau & Associates (Martin Dolitsky of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered March 21, 2016. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature. By order entered November 19, 2014, the Civil Court found that defendant had established that it had timely requested additional verification, and held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff had provided the requested verification to defendant. At a nonjury trial held on February 26, 2016, the Civil Court noted that the only issue to be determined was whether plaintiff had provided the requested verification, stated that the burden was on plaintiff, and directed plaintiff to call its first witness. Plaintiff did not call any witnesses, arguing that the burden was on defendant to first establish that it had not received the requested verification. With no testimony having been presented, the Civil Court found for defendant on the ground that plaintiff had failed to demonstrate that it had provided the requested verification. Plaintiff appeals from a judgment entered March 21, 2016, dismissing the complaint.

For the reasons stated in Island Life Chiropractic, P.C. v Travelers Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op 51273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 23, 2019