November 9, 2018

T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))

Headnote

The main issue in the case was whether the action by a medical supply corporation to recover assigned first-party no-fault benefits was premature because the plaintiff failed to provide requested verification. The defendant argued that the action was premature because the plaintiff had not provided the requested verification, and the Civil Court granted the defendant's motion for summary judgment dismissing the complaint. However, in opposition to the motion, the plaintiff submitted an affidavit from the owner, which gave rise to a presumption that the requested verification had been mailed to and received by the defendant. The court held that there was a triable issue of fact as to whether the action was premature, and therefore the order was reversed, and the defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))

T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U)) [*1]

T & S Med. Supply Corp. v Travelers Ins. Co.

2018 NY Slip Op 51597(U) [61 Misc 3d 139(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-728 K C

T & S Medical Supply Corp., as Assignee of Lacina Koller, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 27, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 because plaintiff had failed to provide requested verification. By order entered January 27, 2016, the Civil Court granted defendant’s motion.

In support of its 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]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, 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 action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op [*2]51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018