CHAPA PRODUCTS CORP v. 21ST CENTURY INSURANCE COMPANY (2019)

ORDERED that the order is modified by providing that defendant's cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had not timely submitted the claim underlying the first cause of action and had failed to provide requested verification as to the claim underlying the second cause of action. By order entered May 11, 2016, the Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's contentions, the proof submitted by defendant was sufficient to demonstrate that the verification requests and the denial of claim forms at issue had been timely and properly mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that the claim underlying the first cause of action had not been timely submitted; and that defendant had not received the verification at issue. However, the proof submitted by plaintiff was sufficient to give rise to a presumption that the claim form underlying the first cause of action and the verification at issue with respect to the second cause of action had been timely mailed to defendant (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ). Therefore, on this record, neither party is entitled to summary judgment.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

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