October 18, 2019

New Horizon Surgical Ctr., LLC v Travelers Ins. Co. (2019 NY Slip Op 51690(U))

https://www.beynensonlaw.com/case-law/new-horizon-surgical-ctr-llc-v-travelers-ins-co-2019-ny-slip-op51690u/

Court: Appellate Term, Second Department
Decided: October 18, 2019
Citation: 2019 NY Slip Op 51690(U) · 65 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

New Horizon Surgical Ctr., LLC v Travelers Ins. Co., 65 Misc 3d 139(A), 2019 NY Slip Op 51690(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests. The provider sued for assigned no-fault benefits, and the insurer sought summary judgment because requested verification remained outstanding. The insurer's proof raised a presumption that the initial and follow-up requests were properly mailed and demonstrated nonreceipt of the requested verification. Under 11 NYCRR 65-3.8 (a) (1) and 11 NYCRR 65-3.8 (b) (3), payment or denial was not required until all demanded verification was supplied. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.

Reported in New York Official Reports at New Horizon Surgical Ctr., LLC v Travelers Ins. Co. (2019 NY Slip Op 51690(U))

[*1]

New Horizon Surgical Ctr., LLC v Travelers Ins. Co.

2019 NY Slip Op 51690(U) [65 Misc 3d 139(A)]

Decided on October 18, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2204 RI C

New Horizon Surgical Center, LLC, as Assignee of Charity Calhoun, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Alla Pecker of counsel), for appellant. Strauss Terry Law Group, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Lizette Colon, J.), entered June 29, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

The proof defendant submitted was sufficient to give rise to a presumption that the initial and follow-up verification requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant had not received the requested verification.

Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a “partial response” to defendant’s verification requests (see 11 NYCRR [*2]65-3.8 [a] [1]; [b] [3]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided”]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019

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.

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: Timely requests went unanswered; the claim is not overdue and the action is premature

Reversed and granted the insurer summary judgment because its presumptively mailed verification requests went unanswered, and it need not pay or deny upon a partial response since a claim need not be paid until all demanded verification is provided.

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

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's proof sufficient to raise a presumption that its initial and follow-up verification requests were properly mailed.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
New York & Presbyt. Hosp. v Progressive Cas. Ins. Co. (2004 NY Slip Op 01750) FollowedThe insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both.

Cited by

American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U))A provider's substantial compliance with reasonable additional verification requests does not make its claims payable.

Similar decisions

New Horizon Surgical Ctr., L.L.C. v Travelers Ins. (2019 NY Slip Op 50281(U))The provider's action was premature because its verification submissions did not include the requested signed informed consent form.
Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51441(U))An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests.
Gentlecare Ambulatory Anesthesia Servs. v Travelers Ins. Co. (2017 NY Slip Op 51802(U))The provider's affidavit raised a triable issue whether requested verification had been received and the action was premature.
Harbor Chiropractic, P.C. v Travelers Ins. Co. (2017 NY Slip Op 50959(U))The provider failed to show that requested verification was supplied before suit, leaving its action premature.
T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))The provider's owner's affidavit raised a factual issue about receipt of verification and whether the action was premature.