Parisien v Travelers Ins. Co.

[*1] Parisien v Travelers Ins. Co. 2017 NY Slip Op 51750(U) Decided on December 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2271 Q C

Jules Francois Parisien, M.D., as Assignee of Brumaire, Shimaine, Appellant,

against

Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Arvind Purohit, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 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, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered August 13, 2014, the Civil Court granted defendant's motion.

In support of its motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it 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, in opposition to the motion, plaintiff submitted an [*2]affidavit from plaintiff's owner, which affidavit 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 Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

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.

Paul Kenny
Chief Clerk
Decision Date: December 12, 2017