Eagle Surgical Supply, Inc. v Travelers Indem. Co.

[*1] Eagle Surgical Supply, Inc. v Travelers Indem. Co. 2010 NY Slip Op 51456(U) [28 Misc 3d 137(A)] Decided on August 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1179 K C. NO. 2009-1179 K C

Eagle Surgical Supply, Inc. as Assignee of TREVOR ANTHONY CHRISTIE, Appellant,

against

Travelers Indemnity Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 2, 2009. 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. Plaintiff opposed the motion. The Civil Court granted defendant's motion, and this appeal ensued.

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS [*2]
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAGLE SURGICAL SUPPLY, INC.
as Assignee of TREVOR ANTHONY CHRISTIE,

Appellant,

-against-
TRAVELERS INDEMNITY COMPANY,

Respondent.

Golia, J., concurs in the following memorandum:

While I concur with the findings as well as the recitation of facts set forth in the majority opinion, I take note of the papers submitted by defendant in support of its motion for summary judgment.

Defendant submitted what is easily the most extensive and detailed affidavit to establish proper and timely mailing of the requests for verification. Having done so, defendant then failed to address by someone with personal knowledge that the verification requests remain unsatisfied.
Decision Date: August 12, 2010