Island Life Chiropractic, P.C., v. Travelers Insurance Company, 2016 N.Y. Slip Op. 51413(U)
An affidavit by Plaintiff saying it had submitted the requested verification was sufficient to raise a triable issue of fact that it had complied with the requested verification and thereby was enough to defeat a motion for summary judgment. The Court said as follows:
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that initial and follow-up verifications requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant had not received the requested verification, and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, plaintiff submitted an affidavit from plaintiff’s owner, which, as plaintiff argues, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact 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]).