Blackman v. Hereford Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 12, 2019
• Docket: 2019 NYSlipOp 51166(U)
• Status: Published

Opinion

Noel E. Blackman, M.D., as Assignee of Lexius, Anocles, Appellant,

against

Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Andrew Schiavone of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered March 21, 2016. 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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and denied plaintiff's cross motion for summary judgment.

Plaintiff correctly argues that the affidavit it submitted 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]), and thus that there is a triable issue of fact as to whether the verification had been provided.

In light of the triable issue of fact, plaintiff's cross motion was properly denied.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019