Treka Med., P.C. v Travelers Ins. Co.

[*1] Treka Med., P.C. v Travelers Ins. Co. 2016 NY Slip Op 51411(U) Decided on September 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-413 Q C

Treka Medical, P.C., as Assignee of GOLAM SARWAR, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 30, 2014. The order granted defendant's motion for summary judgment dismissing plaintiff's first, and third through seventh, causes of action.

ORDERED that the order is affirmed, with $25 costs.

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 plaintiff's first, and third through seventh, causes of action.

Contrary to plaintiff's argument with respect to the claim underlying the first cause of action, defendant sufficiently described its practices and procedures for receipt of mail and demonstrated, prima facie, that it had not received this claim. Contrary to plaintiff's further argument, plaintiff failed to raise a triable issue of fact as to whether it had mailed this claim to defendant. While plaintiff submitted an affidavit by its owner, that affidavit alleges that this claim was mailed almost a month before the services set forth in that claim were provided. Moreover, while plaintiff attached to its opposition papers the claims allegedly sent to defendant, there was no claim attached matching the amount sought in the first cause of action.

Contrary to plaintiff's arguments with respect to the third through seventh causes of action, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that initial and follow-up verification 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 those causes of action are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016