T & S Med. Supply Corp. v MVAIC

[*1] T & S Med. Supply Corp. v MVAIC 2020 NY Slip Op 51327(U) Decided on November 6, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1724 K C

T & S Medical Supply Corp., as Assignee of Acosta, Emmanuel, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered June 27, 2018. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

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. By order entered June 1, 2016, the Civil Court found that defendant had established that it had timely requested additional verification, and held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff had provided the requested verification to defendant. At a nonjury trial held on January 8, 2018, the Civil Court noted that the only issue to be determined was whether plaintiff had provided the requested verification, stated that the burden was on plaintiff, and directed plaintiff to call its first witness. Plaintiff did not call any witnesses, arguing that the burden was on defendant to first establish that it had not received the requested verification. With no testimony having been presented, the Civil Court found for defendant on the ground that plaintiff had failed to demonstrate that it had provided the requested verification. Plaintiff appeals from a judgment entered June 27, 2018 dismissing the complaint.

For the reasons stated in Island Life Chiropractic, P.C. v Travelers Ins. Co. (64 Misc 3d 143[A], 2019 NY Slip Op 51273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020