PAVLOVA v. TRAVELERS INSURANCE COMPANY (2018)

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification, and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's contentions, defendant's proof was sufficient to demonstrate prima facie that it had properly mailed the verification requests at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] ) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] ). However, as plaintiff further argues, the affidavit submitted by plaintiff in support of its cross 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 order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

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