September 22, 2017

TAM Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51247(U))

Headnote

The relevant facts considered in this case involve an action by a provider to recover assigned first-party no-fault benefits. The court considered whether the defendant had timely and properly denied the claim based on the plaintiff's failure to provide requested verification within 120 days of the initial verification request. The main issue decided was whether the defendant had received the requested verification, as well as whether 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. The holding of the case was that there was a triable issue of fact as to whether the plaintiff provided the requested verification, and as a result, the court reversed the order and denied the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at TAM Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51247(U))

TAM Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51247(U)) [*1]

TAM Med. Supply Corp. v Tri State Consumers Ins. Co.

2017 NY Slip Op 51247(U) [57 Misc 3d 133(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1850 Q C

TAM Medical Supply Corp., as Assignee of Budhram, Dhandai, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Laurie DiPreta (Rhonda H. Barry, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered July 11, 2014. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff’s failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). Contrary to plaintiff’s contention, defendant demonstrated, prima facie, that it had not received the requested verification. However, as plaintiff further 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 St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017