December 8, 2017

Active Care Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-tri-state-consumers-ins-co-2017-ny-slip-op51721u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51721(U) · 58 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Active Care Med. Supply Corp. v Tri State Consumers Ins. Co., 58 Misc 3d 128(A), 2017 NY Slip Op 51721(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 provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied. The insurer established prima facie that it mailed initial and follow-up verification requests and had not received the requested material. The provider's employee affidavit created a presumption of mailing and receipt, raising a triable issue whether the first cause of action was premature. The record established that the second claim was submitted more than 45 days after the supplies were furnished under 11 NYCRR 65-1.1, and the provider raised no factual issue concerning its timely denial. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the first cause of action and affirmed dismissal of the second.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))

[*1]

Active Care Med. Supply Corp. v Tri State Consumers Ins. Co.

2017 NY Slip Op 51721(U) [58 Misc 3d 128(A)]

Decided on December 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 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
2014-2266 Q C

Active Care Medical Supply Corp., as Assignee of Mercado Manuel, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered June 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that the first cause of action was premature due to plaintiff’s failure to provide verification and that plaintiff had submitted the claim underlying the second cause of action more than 45 days after the medical supplies at issue had been furnished. By order entered June 19, 2014, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof with respect to the claim underlying the first cause of action was sufficient to demonstrate, prima facie, that defendant had properly [*2]mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and, thus, that the cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff’s employee in opposition to defendant’s motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the first cause of action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Contrary to plaintiff’s additional contention, the record establishes that the claim underlying the second cause of action had been untimely submitted(see 11 NYCRR § 65-1.1) and that defendant had timely denied the claim on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In opposition, plaintiff failed to raise a triable issue of fact with respect thereto.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 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.

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: Different mailing results for different documents or claims in one decision

Held the provider's affidavit raised a presumption that verification was mailed, creating a fact issue on the first claim, while the insurer proved timely mailing of its 45-day-rule denial on the second.

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, 55 (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: Fact issues remain on whether the verification defense applies

Held the insurer showed timely requests and non-receipt, but the provider employee's affidavit presuming mailing of the verification raised a triable issue whether the first cause of action was premature.

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, 114 (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.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.

Similar decisions

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))The provider's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification.
Active Care Med. Supply Corp. v Farmington Cas. Co. (2019 NY Slip Op 50987(U))The provider's second and third causes of action were premature because requested wholesale invoices remained outstanding.
T & S Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51453(U))The provider's affidavit raised a triable issue as to whether it had supplied the requested verification.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))The provider's mailing affidavit raised a factual issue over whether its claims were premature for outstanding verification.
Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51857(U))The provider's mailing affidavit raised a triable issue as to whether its action was premature for failure to supply verification.