December 6, 2018

Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51810(U))

https://www.beynensonlaw.com/case-law/lenox-hill-radiology-mia-p-c-v-global-liberty-ins-co-of-n-y-2018-ny-slip-op-51810u/

Court: Appellate Term, Second Department
Decided: December 6, 2018
Citation: 2018 NY Slip Op 51810(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51810(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2018)

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 action was premature because timely verification requests remained unanswered when the action was commenced. The insurer established timely mailing of its initial and follow-up requests and nonreceipt of the requested verification. The provider did not show that it had supplied the verification before commencing suit. Under 11 NYCRR 65-3.5 (c) and 65-3.8 (a), the insurer's 30-day period to pay or deny the claims had not begun to run. 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 Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51810(U))

[*1]

Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y.

2018 NY Slip Op 51810(U)

Decided on December 6, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-1623 S C

Lenox Hill Radiology and MIA, P.C., as Assignee of Manuel Garza, Respondent,
against
Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jonathan Depasquale, Jason Tenenbaum and Talia Beard of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated July 6, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 moved for summary judgment dismissing the complaint, arguing that the action was premature inasmuch as the time in which defendant had to pay or deny plaintiff’s claims had been tolled because plaintiff had failed to respond to timely requests for verification. By order dated July 6, 2017, the District Court denied the motion.

Contrary to the determination of the District Court, defendant established the timely mailing of the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant also sufficiently established that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]), and, thus, plaintiff’s action is premature.

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

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 06, 2018

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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held, contrary to the lower court, that the insurer established timely mailing of its initial and follow-up verification requests.

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.

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

Held the action premature because the insurer timely mailed initial and follow-up requests, never received the verification, and the provider did not show it was provided before suit.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

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.

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.

Similar decisions

Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))The provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt.
Radiology Today, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52452(U))The provider's action was premature because requested MRI films remained outstanding after timely verification requests.
Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co. (2013 NY Slip Op 51750(U))The provider submitted its claims more than 45 days after the services and offered no explanation for the delay.
Atlantic Radiology Imaging, P.C. v Travelers Prop. Cas. Co. of Am. (2018 NY Slip Op 50053(U))The provider's failure to fully respond to verification requests established that its no-fault claims were premature.
Orthoplus Prods., Inc. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51003(U))The provider's action was premature because requested verification remained outstanding, despite its asserted submission of some documents.