September 15, 2017

Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-hereford-ins-co-2017-ny-slip-op-51196u/

Court: Appellate Term, Second Department
Decided: September 15, 2017
Citation: 2017 NY Slip Op 51196(U) · 57 Misc 3d 131(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

Tam Med. Supply Corp. v Hereford Ins. Co., 57 Misc 3d 131(A), 2017 NY Slip Op 51196(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 affidavit raised a factual issue over whether requested verification remained outstanding. The insurer sought summary judgment dismissing the assigned no-fault action as premature for failure to supply verification. Although the insurer made a prima facie showing of nonreceipt, the provider's opposing affidavit supported a presumption that the verification had been mailed and received under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. The Civil Court had limited the trial issue, under CPLR 3212 (g), to whether verification remained outstanding.

Reported in New York Official Reports at Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))

[*1]

Tam Med. Supply Corp. v Hereford Ins. Co.

2017 NY Slip Op 51196(U) [57 Misc 3d 131(A)]

Decided on September 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 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
2014-1901 K C

Tam Medical Supply Corp., as Assignee of Green, Jabron, Respondent,
against
Hereford Insurance Co., Appellant.

Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 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 ground that the action was premature because plaintiff had failed to provide requested verification. By order entered June 10, 2014, the Civil Court denied defendant’s motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. Defendant appeals from so much of the order as denied its motion.

While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff 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]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint as 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, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the provider's affidavit raised a presumption that the requested verification was mailed and received, which against the insurer's non-receipt showing left 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, 103 (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 verification remained outstanding because the provider's affidavit raised a presumption of mailing and receipt, so the insurer's prematurity motion was properly denied.

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

TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51248(U))The provider's affidavit created a presumption of verification receipt and raised a triable issue concerning prematurity.
Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))The provider's owner's affidavit raised a triable issue as to receipt of requested verification, defeating summary judgment on prematurity.
TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))The provider's affidavit raised a triable issue as to verification receipt and defeated the insurer's prematurity motion.
Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))The provider's proof of mailing requested verification raised a factual issue over whether its no-fault action was premature.
TAM Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51247(U))The provider's affidavit raised a triable issue as to whether it supplied verification sought under the 120-day rule.