Veraso Med. Supply Corp. v. NY City Tr. Auth.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 10, 2019
• Docket: 2019 NYSlipOp 50754(U)
• Status: Published

Opinion

Veraso Medical Supply Corp., as Assignee of Lespinas, Harry, Respondent,

against

NY City Transit Authority, Appellant.

Jones Jones, LLP (Agnes Neiger of counsel), for appellant. Law Office of John Gallagher, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 11, 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 which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim form at issue.

The affidavit of defendant's claims examiner established that defendant had not received the claim form at issue. However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff's owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

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

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