Ema Acupuncture, P.C. v. Citiwide Auto Leasing

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 22, 2017
• Docket: 2017 NYSlipOp 51234(U)
• Status: Published

Opinion

EMA Acupuncture, P.C., as Assignee of Roque Alfredo, Respondent,

against

Citiwide Auto Leasing, Appellant.

Miller, Leiby & Associates, P.C. (Stacia Ury, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 3, 2014. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.

Defendant demonstrated 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 that it had not received the requested verification. Thus, defendant demonstrated, prima facie, that the complaint is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins.

Co., 24 AD3d 492, 493 [2005]). As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, the motion should have been granted.

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

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

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