October 11, 2016

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51506(U))

Headnote

The relevant facts in this case involved an action by a medical supply provider to recover assigned first-party no-fault benefits. The Civil Court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment on the basis that the action was premature due to the plaintiff's failure to provide requested verification. The main issue decided was whether the plaintiff's action was premature, with the defendant demonstrating that it had timely mailed its verification request and follow-up verification request, and had not received the requested verification. In opposition, the plaintiff submitted an affidavit from the owner, giving rise to a presumption that the requested verification had been received by the defendant. The holding of the case was that there was a triable issue of fact as to whether the action was premature, and the order was modified to provide that the defendant's cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51506(U))

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51506(U)) [*1]

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51506(U) [53 Misc 3d 139(A)]

Decided on October 11, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-269 Q C

TAM Medical Supply Corp., as Assignee of Shameca Dudley, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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, by order entered December 18, 2013, the Civil Court denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.

In support of its cross 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 cross 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 57776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

Decision Date: October 11, 2016