|Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co.|
|2018 NY Slip Op 51648(U) [61 Misc 3d 143(A)]|
|Decided on November 16, 2018|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|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 of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered April 4, 2016. 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 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 contentions, defendant's proof was sufficient to demonstrate prima facie that it had timely mailed initial and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ); that it had not received the requested verification; and that it had timely denied the claim on that ground. 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 id.). 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 ELLIOT, JJ., concur.