First Care Med. Equip., LLC v. MVAIC

76 Misc. 3d 127(A), 2022 NY Slip Op 50778(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 22, 2022
• Docket: 2020-491 K C
• Status: Unpublished

Opinion

First Care Med. Equip., LLC v MVAIC (2022 NY Slip Op 50778(U)) [*1]

First Care Med. Equip., LLC v MVAIC

2022 NY Slip Op 50778(U) [76 Misc 3d 127(A)]

Decided on July 22, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-491 K C

First Care Medical Equipment, LLC, as Assignee of Taveras, Kirby, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 13, 2019. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

As plaintiff 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 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 the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d [*2]152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff's remaining contention lacks merit.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 22, 2022