December 19, 2017

Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-ny-cent-mut-fire-ins-co-2017-ny-slip-op51828u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51828(U) · 58 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 later decision (see Cited by)
Issues: Verification requests
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 137(A), 2017 NY Slip Op 51828(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature. The provider appealed an order granting the insurer summary judgment for failure to supply requested verification and denying the provider's cross motion. Its sole appellate argument challenged the follow-up requests, which complied with 11 NYCRR 65-3.6 (b). Following Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., any confusion about the requested material should have prompted further communication rather than inaction. The Appellate Term, Second Department, affirmed the order in favor of the insurer.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))

[*1]

Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51828(U) [58 Misc 3d 137(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1221 K C

Healthy Way Acupuncture, P.C., as Assignee of Kenia Rosado, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 20, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

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

Contrary to plaintiff’s only argument on appeal, the follow-up verification requests issued by defendant were proper (see 11 NYCRR 65-3.6 [b]). In any event, “[a]ny confusion on the part of [] plaintiff as to what was being sought should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

Legal questions

A question 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

Upheld dismissal as premature, holding the insurer's follow-up verification requests proper and that any confusion about what was sought had to be resolved by communication, not inaction.

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

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 by

A label shows how the later decision treated this one.

Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2021 NY Slip Op 50523(U)) Contrasted (cf., but see)The provider failed to prove compliance with verification requests or a timely written justification for noncompliance.
Lefferts Gardens Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50599(U))The provider's action was premature because it failed to respond to the insurer's timely and proper verification requests.

Similar decisions

Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))The parties' proof failed to establish either IME nonappearance or the provider's prima facie entitlement to summary judgment.
Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51865(U))The insurer's summary judgment dismissal based on the provider's failure to appear for two scheduled EUOs was affirmed.
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.
Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. (2015 NY Slip Op 50537(U))The insurer failed to prove timely mailing of its denials because its affiant did not establish knowledge of the insurer's mailing practices.