December 19, 2017

Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51817(U))

https://www.beynensonlaw.com/case-law/irina-acupuncture-p-c-v-new-york-cent-mut-fire-ins-co-2017-ny-slip-op51817u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51817(U) · 58 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 58 Misc 3d 136(A), 2017 NY Slip Op 51817(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 established that the no-fault action was premature because timely requested verification remained outstanding. The Civil Court had denied the insurer summary judgment, reasoning that untimely denial precluded its verification defense, and granted the provider's cross motion. The insurer proved timely mailing of initial and follow-up verification requests and nonreceipt of the requested material, establishing prima facie prematurity under Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. The provider failed to raise a triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion dismissing the complaint and denied the provider's cross motion. It treated the appeal from the order as a premature appeal from the judgment under CPLR 5520 (c).

Reported in New York Official Reports at Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51817(U))

[*1]

Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51817(U) [58 Misc 3d 136(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-1018 K C

Irina Acupuncture, P.C., as Assignee of Zhane Darqan, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Law Office of Emilia I. Rutigliano (Marina Josovich, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2015. The judgment, entered pursuant to an order of that court entered December 29, 2014 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,673.11.

ORDERED that, on the court’s own motion, the notice of appeal from the order entered December 29, 2014 is deemed a premature notice of appeal from the judgment entered January 23, 2015 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered December 29, 2014, in which the Civil Court denied defendant’s motion, finding that defendant was precluded from raising its defense that verification had not been provided because defendant had not timely denied plaintiff’s claims [*2]on that ground, and granted plaintiff’s cross motion for summary judgment. We deem the notice of appeal from the order entered December 29, 2014 to be a premature notice of appeal from a judgment which was subsequently entered on January 23, 2015 in favor of plaintiff in the principal sum of $2,673.11 (see CPLR 5520 [c]).

Defendant demonstrated 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. Thus, defendant demonstrated, prima facie, that the complaint is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, the motion should have been granted and plaintiff’s cross motion should have been denied.

Accordingly, the judgment is reversed, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

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

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

Held the action premature, rejecting preclusion for lack of a timely denial, because the insurer timely mailed verification requests, never received the verification, and the provider raised no triable issue.

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.

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 demonstrated that it timely mailed its initial and follow-up verification requests, supporting its prima facie showing that the action was premature.

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.

Similar decisions

Irina Acupuncture, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50781(U))The insurer's proof of delayed receipt raised a factual issue concerning timely mailing of the provider's claim forms.
Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co. (2017 NY Slip Op 51461(U))The insurer's first IME was not scheduled to be held within 30 days of receipt of the claims, warranting judgment for the provider.
City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 51839(U))The providers' own purported verification responses showed that requested material remained outstanding and their no-fault action was premature.
Oriental World Acupuncture, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 52181(U))The insurer established that the provider's action was premature because requested verification remained outstanding when suit began.
Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))The insurer established timely IME scheduling, the assignor's nonappearance and timely denials, warranting dismissal of the claims.