|TAM Med. Supply Corp. v Tri State Consumers Ins. Co.|
|2017 NY Slip Op 51247(U) [57 Misc 3d 133(A)]|
|Decided on September 22, 2017|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Laurie DiPreta (Rhonda H. Barry, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered July 11, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 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 which granted defendant's motion for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff's failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). Contrary to plaintiff's contention, defendant demonstrated, prima facie, that it had not received the requested verification. However, as plaintiff further 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 St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.