Pavlova v Travelers Ins. Co.

[*1] Pavlova v Travelers Ins. Co. 2018 NY Slip Op 51778(U) Decided on November 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1249 K C

Ksenia Pavlova, D.O., as Assignee of Jan Cedana, Respondent,

against

Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 16, 2015, deemed from a judgment of that court entered February 4, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 16, 2015 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $3,192.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 16, 2015 as granted plaintiff's cross motion for summary judgment is vacated and plaintiff's cross 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 verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant's appeal from an order of the Civil Court entered November 16, 2015 denying defendant's motion and granting plaintiff's cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $3,192.79 that was entered on February 4, 2016 pursuant to the order (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]), in that defendant had [*2]timely mailed initial and follow-up requests for verification (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff 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, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is reversed, so much of the order entered November 16, 2015 as granted plaintiff's cross motion for summary judgment is vacated and plaintiff's cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018