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June 8, 2021

Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2021 NY Slip Op 50523(U))

https://www.beynensonlaw.com/case-law/burke-2-physical-therapy-p-c-v-state-farm-mut-auto-ins-co-pip-bi-claims-2021ny-slip-op-50523u/

Court
Civil Court of the City of New York, Kings County
Judge
Gina Levy Abadi, J.
Decided
June 8, 2021
Citation
2021 NY Slip Op 50523(U)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Verification requests Timeliness and preclusion
Legal questions
Outstanding verification and premature actions · Proof of mailing · Mallela defense: preclusion and discovery (see the maps)
Cite as
Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims, 2021 NY Slip Op 50523(U) (Civ Ct, Kings County 2021)

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 failed to prove compliance with verification requests or a timely written justification for noncompliance. The Civil Court, Kings County, granted the insurer's summary judgment motion dismissing the complaint and denied the provider's cross motion as moot. An EUO concerning unrelated claims preceded receipt of the disputed bills, but verification requests sent after receipt tolled the insurer's time to deny; follow-up requests were also timely. The provider's affidavit neither identified the documents allegedly mailed nor attached the responses. Its litigation objection, served over two years after the initial request, was untimely under 11 NYCRR 65-3.5 (o). The provider supplied no written proof reasonably justifying its failure to comply.

Reported in New York Official Reports at Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2021 NY Slip Op 50523(U))



Burke 2 Physical Therapy, P.C., A/A/O SANG, STERNETH, Plaintiff(s),

against

State Farm Mutual Automobile Ins. Co. PIP/BI Claims, Defendant(s).

Index No. CV-733608-19
Gina Levy Abadi, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion and cross motion for summary judgment:

Papers/ Numbered

Notice of Motion and Affidavits/Affirmations Annexed 0O9NBM

Cross-Motion and Answering Affidavits E2E86J

Opposition/Reply Affidavits/Affirmations Q486UA

Memoranda of Law________

Other________

Defendant State Farm Mutual Automobile Ins. Co. PIP/BI Claims (hereinafter “State Farm”) moves for an order, pursuant to CPLR § 3212 granting summary judgment and dismissing the complaint. Plaintiff Burke 2 Physical Therapy, P.C. (hereinafter “Burke”), A/A/O Sterneth Sang (hereinafter “Sang”), cross-moves for an order: pursuant to CPLR § 3211(c) and CPLR § 3212(a) granting summary judgment; denying defendant’s motion; pursuant to CPLR § 3212(g) limiting the issues of fact for trial by finding that the prescribed statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits is overdue; and pursuant to CPLR § 3211(b) to dismiss defendant’s affirmative defenses.

Plaintiff commenced the instant action by filing the summons and complaint on July 2, 2019. Issue was joined on July 31, 2019. Sang allegedly sustained injuries in a motor vehicle accident on September 13, 2018 and defendant was the responsible no-fault insurance carrier. The accident was reported to defendant and a claim number was issued. Sang sought treatment [*2]with Burke on October 3, 2018 and assigned his claims to Burke on October 30, 2018. On September 14, 2018, prior to submission of the claim, an examination under oath (hereinafter “EUO”) of Burke’s owner, John Nasrinpay (hereinafter “Nasrinpay”), was held by defendant regarding claims unrelated to Sang. Nasrinpay’s EUO pre-dated receipt of the bills in dispute in the instant matter. Nevertheless, defendant issued numerous verification requests in this action precipitated by Nasrinpay’s EUO.

At issue in the instant matter are bills for dates of service from October 3, 2018, October 5, 2018, October 30, 2018, October 31, 2018, December 4, 2018, and December 11, 2018. State Farm acknowledged receipt of these claims. State Farm, by letters dated, December 3, 2018, December 17, 2018, January 23, 2019, and January 29, 2019, issued verification requests of the claims seeking production of numerous documents, including tax returns, bank records, and documents related to defendant’s various operating locations. State Farm sent follow-up requests for verification on January 9, 2019, January 23, 2019, February 26, 2019, and March 6, 2019. Plaintiff’s counsel alleges that Burke “replied to every verification request in a timely manner.” Those letters of response to the verification requests and any proof that they were mailed were not attached to the instant motion. State Farm issued denial of claim forms (NF-10s) on April 8, 2019, April 23, 2019, and June 4, 2019.

State Farm contends that it timely requested verifications of the bills at issue in the instant matter, thus tolling their time to pay pursuant to 11 NYCRR § 65-3.5. Moreover, it alleges it properly denied plaintiff’s claims for failure to provide the requested verification within 120 days. Defendant argues that the licensing of a medical provider is a condition precedent to the payment of no-fault benefits, therefore, such verification is relevant to the proof of the claim. Defendant contends that although it “need not demonstrate the ‘good cause’ of its verification requests,” its basis for the requests is substantiated by the affidavit of State Farm’s investigator, Lisa Stockburger. Defendant maintains its verification requests were proper and its denials timely.

In opposition, plaintiff argues that Nasrinpay’s affidavit establishes that plaintiff responded to defendant’s verification requests. Plaintiff alleges that the verification request were “impermissible and improper” as they were discovery requests that do not verify the claim but were “made merely to harass and burden the plaintiff.” In support of its motion and in further opposition to defendant’s motion, plaintiff annexes “Objections to Defendant’s Verification Requests,” undated but served on December 23, 2020, wherein plaintiff’s counsel objected to defendant’s verification and follow-up verification letters during the course of the instant litigation.

An insurer must pay or deny a claim in whole or in part within 30 calendar days after receipt of proof of claim. See 11 NYCRR § 65-3.8(c); Insurance Law § 5106(a). Proof of claim includes “verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.” 11 NYCRR § 65-3.8(a); see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1013 (2d Dept 2014). An insurer can extend or toll its time to pay or deny a claim by forwarding verification forms within 15 business days of receipt of the claim. See 11 NYCRR § 65-3.5(b); Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 (2d Dept 2014); Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 (2d Dept 2013). If any of the requested verifications are not “supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested ” 11 NYCRR § 65-3.6(b); [*3]see Westchester Med. Ctr. v Allstate Ins. Co., 112 AD3d 916, 917 (2d Dept 2013).

Although verification of a claim is permitted pursuant to 11 NYCRR § 65-3.5(c), “the no-fault regulations do not specifically define or limit the information or documentation an insurer may request through verification.” Victory Med. Diagnostics, P.C. v Nationwide Prop. and Cas. Ins. Co., 36 Misc 3d 568, 573 (NY Dist Ct 2012). Litigants sometimes refer to a response to a verification request as an “objection letter,” but “[n]either the no-fault law nor the no-fault regulations establish a mechanism or procedure by which a claimant provider can contest or challenge a request for verification on the grounds it is improper, unduly burdensome, unfounded, unnecessary or harassing.” Id. at 573; cf Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 (2d Dept 1999) (holding that “[a]ny confusion on the part of the plaintiff as to what was being sought [in the verification letters] should have been addressed by further communication, not inaction”); Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 137 (App Term 2017). However, a demand for verification of facts can only be made if “there are good reasons to do so.” 11 NYCRR § 65-3.2(c). An insurer “is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” 11 NYCRR § 65-3.5(c). The Superintendent’s regulations provide for agency oversight of insurance carriers, and demand that carriers “delay the payment of claims to pursue investigations solely for ‘good cause’ ” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d 313, 322 (2005); see 11 NYCRR § 65-3.2 (c). In the licensing context, “carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud.” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d at 322.

11 NYCRR § 65—3.5 (o) provides that a verification letter must be responded to by either submitting “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” If the claimant fails to respond to the verification letters, “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.” 11 NYCRR § 65-3.5 (b)(3).

In the instant matter, although the EUO of plaintiff occurred prior to receipt of the claim, the request for verification was sent after the claim was received. Therefore, the verification request tolled defendant’s time to deny the claim. See Clear Water Psychological Services, P.C. v Hereford Ins. Co., 68 Misc 3d 127(A) (App Term 2020). The follow-up verifications letters were also timely. Defendant’s verification letters, in compliance with 11 NYCRR § 65-3.5(o), notified plaintiff that it was required to provide all documents requested or provide written proof of a reasonable justification for its failure to comply.

Notably, plaintiff’s statements fluctuate between arguing that they provided the documentation and that State Farm is not entitled to such documentation. While plaintiff attests that it timely responded to the verification requests, it fails to attach such letters in response to the instant motion. Moreover, the affidavit of Nasrinpay states that he “personally responded and mailed on 01/18/2019, 02/06/2019 and 03/26/19 the verification responses in issue in this case to the address designated by defendant on the verification requests, to the extent such response was proper and in my possession.” Cross-Motion, p 160, ¶ 5. Nasrinpay fails to attach his responses to the verification letters to illustrate what was produced or to provide written proof of a reasonable justification for the failure to comply. Additionally, his affidavit fails to [*4]detail what was allegedly mailed to defendant. Defendant denies having received any such correspondence from plaintiff before issuing the NF-10 denials of its claims.

Furthermore, although 11 NYCRR § 65-3.5(o) provides for a response which allows for written proof of reasonable justification for the failure to comply with a verification request, no such response was submitted in support of this motion. Plaintiff’s counsel submits an “objection” to the verification request, which is not a proper response to defendant’s verification requests as it is not timely pursuant to 11 NYCRR § 65-3.5(o). Moreover, the “objection” appears to reference Mallela materials sought during litigation. The Court notes that the instant action was commenced on July 2, 2019 and plaintiff’s “objection” was served over 18 months after commencement of the action and over 2 years after the initial verification request was made. Therefore, plaintiff failed to submit proof that it complied with §11 NYCRR § 65-3.5(o). Finally, the Court finds the remainder of plaintiff’s arguments to be pro forma, without merit, and specious.

Accordingly, defendant’s motion pursuant to CPLR § 3212 for summary judgement dismissing the complaint is granted in its entirety and plaintiff’s cross-motion is denied as moot.

The foregoing constitutes the decision and order of this Court.

Dated: June 8, 2021
Hon. Gina Levy Abadi
Judge, Civil Court

Legal questions (3)

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.

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: Insurer properly denied the claim because verification was not provided (120-day rule)

Held the denials for nonresponse valid because the timely requests and follow-ups gave the 120-day warning, and the provider showed neither the responses it claimed to have sent nor a timely written justification.

  • Appellate DivisionApp Div 30
  • Appellate TermApp Term 276
  • Trial courtsTrial 68
2014, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2013, Appellate Division: 2 decisions (2 Insurer's showing fails)2011, Appellate Division: 5 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2009, Appellate Division: 1 decision (1 Premature: verification outstanding)2008, Appellate Division: 2 decisions (2 Triable issue)2007, Appellate Division: 6 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails, 1 Provider complied)2006, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2005, Appellate Division: 4 decisions (2 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2004, Appellate Division: 5 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)2026, Appellate Division: 1 decision (1 Nonresponse denial upheld)2023, Appellate Term: 2 decisions (2 Nonresponse denial upheld)2022, Appellate Term: 14 decisions (6 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Triable issue, 3 Insurer's showing fails)2021, Appellate Term: 4 decisions (3 Premature: verification outstanding, 1 Triable issue)2020, Appellate Term: 5 decisions (1 Premature: verification outstanding, 3 Triable issue, 1 Insurer's showing fails)2019, Appellate Term: 25 decisions (11 Premature: verification outstanding, 3 Nonresponse denial upheld, 10 Triable issue, 1 Insurer's showing fails)2018, Appellate Term: 9 decisions (2 Premature: verification outstanding, 7 Triable issue)2017, Appellate Term: 38 decisions (13 Premature: verification outstanding, 22 Triable issue, 3 Insurer's showing fails)2016, Appellate Term: 39 decisions (9 Premature: verification outstanding, 26 Triable issue, 4 Insurer's showing fails)2015, Appellate Term: 21 decisions (9 Premature: verification outstanding, 11 Triable issue, 1 Insurer's showing fails)2014, Appellate Term: 16 decisions (10 Premature: verification outstanding, 6 Triable issue)2013, Appellate Term: 11 decisions (9 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails)2012, Appellate Term: 12 decisions (10 Premature: verification outstanding, 2 Triable issue)2011, Appellate Term: 7 decisions (7 Premature: verification outstanding)2010, Appellate Term: 15 decisions (13 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2009, Appellate Term: 9 decisions (4 Premature: verification outstanding, 5 Insurer's showing fails)2008, Appellate Term: 12 decisions (2 Premature: verification outstanding, 10 Insurer's showing fails)2007, Appellate Term: 6 decisions (4 Premature: verification outstanding, 2 Insurer's showing fails)2006, Appellate Term: 7 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails)2005, Appellate Term: 8 decisions (1 Triable issue, 6 Insurer's showing fails, 1 Provider complied)2004, Appellate Term: 3 decisions (1 Premature: verification outstanding, 2 Insurer's showing fails)2003, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2024, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2025, Appellate Term: 8 decisions (1 Premature: verification outstanding, 7 Nonresponse denial upheld)2026, Appellate Term: 1 decision (1 Insurer's showing fails)2023, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2022, Trial courts: 1 decision (1 Premature: verification outstanding)2021, Trial courts: 5 decisions (1 Nonresponse denial upheld, 2 Triable issue, 2 Insurer's showing fails)2020, Trial courts: 2 decisions (2 Insurer's showing fails)2018, Trial courts: 1 decision (1 Insurer's showing fails)2017, Trial courts: 6 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Insurer's showing fails)2014, Trial courts: 1 decision (1 Insurer's showing fails)2013, Trial courts: 1 decision (1 Triable issue)2012, Trial courts: 7 decisions (2 Premature: verification outstanding, 2 Triable issue, 2 Insurer's showing fails, 1 Provider complied)2011, Trial courts: 2 decisions (2 Insurer's showing fails)2010, Trial courts: 3 decisions (2 Premature: verification outstanding, 1 Insurer's showing fails)2009, Trial courts: 5 decisions (3 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2008, Trial courts: 8 decisions (5 Premature: verification outstanding, 1 Triable issue, 2 Insurer's showing fails)2007, Trial courts: 1 decision (1 Insurer's showing fails)2006, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2005, Trial courts: 8 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails, 1 Provider complied)2004, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Provider complied)2024, Trial courts: 1 decision (1 Nonresponse denial upheld)2025, Trial courts: 4 decisions (2 Nonresponse denial upheld, 2 Triable issue)2026, Trial courts: 6 decisions (1 Premature: verification outstanding, 2 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)This decision
20052010201520202025
Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 22 (this one included) are in the same category.

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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the owner's affidavit that he mailed verification responses insufficient, because it did not detail what was mailed and the responses were not attached, while the insurer denied receiving them; the result rested on the provider's failure to comply with verification.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,203
  • Trial courtsTrial 143
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 5 decisions (5 Insurer proved mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 80 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 73 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 9 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 102 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 20 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 67 decisions (55 Insurer proved mailing, 3 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 109 decisions (87 Insurer proved mailing, 13 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 77 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 27 decisions (12 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 74 decisions (6 Insurer proved mailing, 18 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 3 decisions (3 Insurer proved mailing)2026, Appellate Term: 7 decisions (2 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 17 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 4 decisions (2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 14 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 1 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.

Mallela defense: preclusion and discovery

Open the full map

May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?

This decision: Insurer may raise or investigate the Mallela defense here (rules on the question, but another ground decided the case)

Upheld verification requests for tax returns, bank records and location documents prompted by the owner's EUO, rejecting the provider's late objection that they were improper discovery rather than claim verification.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 71
  • Trial courtsTrial 55
2005, Court of Appeals: 1 decision (1 Defense may be pursued)2021, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Division: 2 decisions (1 Defense may be pursued, 1 Defense barred)2017, Appellate Division: 1 decision (1 Defense may be pursued)2016, Appellate Division: 1 decision (1 Defense may be pursued)2011, Appellate Division: 1 decision (1 Defense may be pursued)2008, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Term: 1 decision (1 Defense may be pursued)2018, Appellate Term: 2 decisions (2 Defense may be pursued)2017, Appellate Term: 2 decisions (2 Defense may be pursued)2014, Appellate Term: 2 decisions (2 Defense may be pursued)2013, Appellate Term: 5 decisions (5 Defense may be pursued)2012, Appellate Term: 8 decisions (8 Defense may be pursued)2011, Appellate Term: 7 decisions (7 Defense may be pursued)2010, Appellate Term: 9 decisions (7 Defense may be pursued, 2 Defense barred)2009, Appellate Term: 7 decisions (7 Defense may be pursued)2008, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2007, Appellate Term: 7 decisions (7 Defense may be pursued)2006, Appellate Term: 6 decisions (6 Defense may be pursued)2025, Appellate Term: 7 decisions (7 Defense may be pursued)2023, Trial courts: 2 decisions (2 Defense may be pursued)2021, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2019, Trial courts: 1 decision (1 Defense may be pursued)2017, Trial courts: 4 decisions (2 Defense may be pursued, 2 Defense barred)2015, Trial courts: 3 decisions (3 Defense may be pursued)2013, Trial courts: 2 decisions (1 Defense may be pursued, 1 Defense barred)2012, Trial courts: 6 decisions (1 Defense may be pursued, 5 Defense barred)2011, Trial courts: 1 decision (1 Defense barred)2010, Trial courts: 3 decisions (3 Defense barred)2009, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2008, Trial courts: 6 decisions (5 Defense may be pursued, 1 Defense barred)2007, Trial courts: 2 decisions (2 Defense may be pursued)2006, Trial courts: 5 decisions (5 Defense may be pursued)2005, Trial courts: 9 decisions (5 Defense may be pursued, 4 Defense barred)2025, Trial courts: 2 decisions (2 Defense may be pursued)2026, Trial courts: 1 decision (1 Defense may be pursued)This decision
20052010201520202025
Defense may be pursuedDefense barredThis decisionCites it or cited by itCited or followed

Of the 134 decisions on this question in the Second Department courts and the Court of Appeals, 111 (this one included) are in the same category.

Cited in this decision

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

  • New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. (2014 NY Slip Op 03812)The insurer raised a factual issue as to whether verification requests tolled the deadline and its denial was timely.
  • Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 05779)The insurer's denial of a defective UB-04 submission did not excuse its failure to respond to the hospital's later NF-5 claim.
  • Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 02390)The hospital's UB-04 form was not the functional equivalent of an NF-5 and did not support tolling before receipt of the NF-5.
  • Westchester Med. Ctr. v Allstate Ins. Co. (2013 NY Slip Op 08616)The insurer failed to establish a verification toll because it offered no evidence of mailing a required follow-up request.
  • Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149)A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact.
  • Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U)) Contrasted (cf., but see)The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature.
  • State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416)Fraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
  • Clear Water Psychological Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 50847(U)) FollowedThe insurer's letters merely reported missing documents and did not establish proper verification requests warranting dismissal.

Similar decisions

  • Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50624(U))The provider's detailed verification objections left factual issues about compliance with the insurer's requests.
  • First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))The insurer's summary judgment motion failed because the sufficiency of the provider's verification response presented a factual issue.
  • Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))A timely verification request's toll does not give an insurer further opportunities to make otherwise untimely verification requests.
  • Zwanger & Pesiri Radiology Group, LLP v Mapfre Ins. Co. (2017 NY Slip Op 50981(U))The insurer failed to establish proper mailing of verification requests and its denial, or that requested verification remained outstanding.
  • Lenox Hill Radiology v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 50978(U))The insurer failed to prove mailing or a reasonable basis for verification demands after the provider supplied available MRI documentation.
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