Right Aid Med. Supply Corp. v. Hereford Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 16, 2018
• Docket: 2018 NYSlipOp 51641(U)
• Status: Published

Opinion

Right Aid Medical Supply Corp., as Assignee of Quezada, Mery M., Respondent,

against

Hereford Insurance Co., Appellant.

Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 27, 2016. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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

While defendant made a prima facie showing that it had not received the requested verification, 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]). As a triable issue of fact exists 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 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018