T & S Med. Supply Corp. v. MVAIC

Appellate Terms of the Supreme Court of New York

T & S Med. Supply Corp. v. MVAIC

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 10, 2019

Docket2019 NYSlipOp 50737(U)

StatusPublished

This text of T & S Med. Supply Corp. v. MVAIC (T & S Med. Supply Corp. v. MVAIC) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

T & S Med. Supply Corp. v. MVAIC, (N.Y. Ct. App. 2019).

Pincite

Opinion

T & S Medical Supply Corp., as Assignee of Norberto Castelan, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Barbara Carabell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 29, 2016. 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 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 a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Contrary to MVAIC's contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff's assignor is a qualified person within the meaning of Insurance Law § 5202 (b) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]). As a result, the branch of MVAIC's motion seeking summary judgment dismissing the first cause of action should have been denied since MVAIC failed to establish that the verification requests were timely.

Plaintiff correctly argues that the affidavit it submitted in opposition to MVAIC's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, MVAIC (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 was provided. Consequently, the branch of MVAIC's motion seeking summary judgment dismissing [*2]the second cause of action should have been denied.

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

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019

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