September 15, 2017

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2017-ny-slip-op-51194u/

Court: Appellate Term, Second Department
Decided: September 15, 2017
Citation: 2017 NY Slip Op 51194(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51194(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 mailing affidavit raised a factual issue over whether its claims were premature for outstanding verification. The insurer made a prima facie showing that it had not received requested verification for the first through fourth, sixth and seventh causes of action. The provider's opposing affidavit, however, supported a presumption of mailing and receipt under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion dismissing those causes as premature. It affirmed denial of the provider's motion on the same causes, leaving the verification dispute for resolution.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Compas Medical, P.C., as Assignee of Goines, Jaquana, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 2, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that they were premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant demonstrated prima facie that it had not received the requested verification and, thus, that the causes of action at issue are 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 in opposition to defendant’s cross 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 causes of action at issue are 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 [*2]Dists 2015]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action are denied.

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

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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 to and received by the insurer, which against the insurer's non-receipt showing created a factual 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 that although the insurer showed non-receipt, the provider's affidavit presuming mailing of the verification raised a triable issue whether the causes of action were 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.

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.
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

Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51699(U))The provider raised a verification dispute on one claim, but the insurer proved IME and EUO nonappearance on five others.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51417(U))The insurer established proper mailing of verification requests and denials and timely denial after receipt of verification.
Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U))The insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims.
Compas Med., P.C. v Hartford Ins. Co. (2015 NY Slip Op 50784(U))The provider obtained summary judgment on the fourth, fifth and tenth causes of action because the insurer failed to deny those claims timely.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.