September 30, 2022

Parisien v Travelers Ins. Co. (2022 NY Slip Op 51136(U))

https://www.beynensonlaw.com/case-law/parisien-v-travelers-ins-co-2022-ny-slip-op-51136u/

Court: Appellate Term, Second Department
Decided: September 30, 2022
Citation: 2022 NY Slip Op 51136(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Parisien v Travelers Ins. Co., 2022 NY Slip Op 51136(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's affidavit raised a factual issue as to mailing and receipt of verification, preventing summary judgment for either side. The insurer established prima facie that it timely mailed initial and follow-up verification requests and had not received the requested materials. The provider's opposing affidavit nevertheless raised an issue concerning whether verification had been mailed to and received by the insurer, leaving the action's prematurity unresolved. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the provider's cross motion for summary judgment. The denial of the insurer's motion for summary judgment dismissing the complaint remained intact, so neither party obtained summary judgment.

Reported in New York Official Reports at Parisien v Travelers Ins. Co. (2022 NY Slip Op 51136(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Jules Francois Parisien, M.D., as Assignee of Haynes, Jaeneane, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 6, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the action was premature as plaintiff had failed to respond to defendant’s timely requests for additional verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 6, 2019, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had 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 that it had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (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]). As a result, there is an issue of fact as to whether plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 30, 2022

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer proved timely mailing of its verification requests, but the provider's affidavit raised an issue of fact as to whether its verification response had been mailed to and received by the insurer.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Fact issues remain on whether the verification defense applies

Denied both summary judgment motions because the provider's affidavit raised a fact issue as to whether the requested verification was mailed and received, leaving open whether the action was premature.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.

Similar decisions

Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.
Parisien v 21st Century Ins. Co. (2018 NY Slip Op 51652(U))The insurer established timely mailing of the denial forms asserting lack of medical necessity, defeating the provider's appellate challenge.
Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))The insurer proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial.
Parisien v NY City Tr. Auth. (2018 NY Slip Op 51699(U))The self-insurer proved timely mailing of its denials, and the provider's remaining argument was unpreserved.
Parisien v Maya Assur. Co. (2018 NY Slip Op 50766(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.