October 20, 2017

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-state-farm-mut-auto-ins-co-2017-ny-slip-op51408u/

Court: Appellate Term, Second Department
Decided: October 20, 2017
Citation: 2017 NY Slip Op 51408(U) · 57 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 57 Misc 3d 143(A), 2017 NY Slip Op 51408(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's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification. The insurer obtained summary judgment dismissing the action for assigned no-fault benefits on the ground that the provider had failed to furnish requested verification. The affidavit created a presumption that the verification had been mailed to and received by the insurer. That proof raised a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))

[*1]

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51408(U) [57 Misc 3d 143(A)]

Decided on October 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 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
2014-1997 K C

Active Care Medical Supply Corp., as Assignee of Saravia, Victor, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Kelly & Sheridan, LLP (Theresa A. Kelly, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2014. The order granted 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 denied.

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 on the ground that the action was premature because plaintiff had failed to provide requested verification.

As plaintiff argues, the affidavit it submitted 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the 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]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 20, 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: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response

Held the provider's opposing affidavit sufficient to give rise to a presumption that the requested verification was mailed to and received by the insurer, which defeated the insurer's prematurity motion by raising a triable issue.

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, 106 (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 a triable issue existed whether the action was premature because the provider's affidavit raised a presumption that the requested verification had been mailed and received.

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.
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 Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))The provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied.
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.
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.
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.
Active Care Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51034(U))The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal.