August 28, 2020

Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U))

Headnote

The case involved an appeal from an order of the Civil Court of the City of New York, Kings County, which granted the defendant's motion for summary judgment and denied the plaintiff's cross motion for summary judgment. The plaintiff, Solution Bridge, Inc., brought the action to recover assigned first-party no-fault benefits. The defendant, Nationwide Ins., argued that the action was premature due to the plaintiff's failure to provide requested verification and that the plaintiff had failed to appear for examinations under oath. The court held that while the defendant demonstrated that they had timely mailed initial and follow-up requests for verification, the affidavit submitted by the plaintiff in opposition to the defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to and received by the defendant. As a result, the court found a triable issue of fact as to whether the action was premature and modified the order to deny the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U))

Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U)) [*1]

Solution Bridge, Inc. v Nationwide Ins.

2020 NY Slip Op 50988(U) [68 Misc 3d 130(A)]

Decided on August 28, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-837 K C

Solution Bridge, Inc., as Assignee of Castro, Shantel, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 23, 2018. 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 dismissing the complaint 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, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff had failed to appear for examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered January 23, 2018, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification and denied plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff argues, the affidavit submitted by plaintiff 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 id.). In light of the foregoing, there is a triable issue of fact as to whether the 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]). Plaintiff’s remaining contention lacks merit (see Frankel v Stavsky, 40 AD3d 918 [2007]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020