August 11, 2017

Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51022(U))

https://www.beynensonlaw.com/case-law/renelique-v-american-tr-ins-co-2017-ny-slip-op-51022u/

Court: Appellate Term, Second Department
Decided: August 11, 2017
Citation: 2017 NY Slip Op 51022(U) · 56 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Renelique v American Tr. Ins. Co., 56 Misc 3d 137(A), 2017 NY Slip Op 51022(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 triable issue as to whether requested verification had been mailed to and received by the insurer. The insurer moved for summary judgment dismissing the assigned no-fault action as premature because verification remained outstanding. Although the insurer demonstrated nonreceipt, the provider's opposing affidavit established a presumption of mailing and receipt under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. That competing proof created a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment.

Reported in New York Official Reports at Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51022(U))

[*1]

Renelique v American Tr. Ins. Co.

2017 NY Slip Op 51022(U) [56 Misc 3d 137(A)]

Decided on August 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 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
2014-1538 Q C

Pierre Jean Jacques Renelique, as Assignee of Nathalia Brown, 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 (Carmen R. Velasquez, J.), entered June 3, 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 is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant demonstrated that it had not received the requested verification and, thus, that plaintiff’s 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 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 view of the foregoing, there is a triable issue of fact as to whether this 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: August 11, 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 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 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.

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

Renelique v Travelers Ins. Co. (2016 NY Slip Op 50911(U))The provider's affidavit raised a factual issue as to whether the insurer received requested verification and the action was premature.
Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 51536(U))The insurer's summary judgment motion based on outstanding verification was denied on appeal.
Renelique v Allstate Ins. Co. (2016 NY Slip Op 51357(U))The insurer's affidavits failed to establish an office mailing procedure ensuring timely mailing of its denial of claim.
Renelique v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50868(U))The insurer's affidavit established timely and proper mailing of the denial based on the assignor's IME nonappearance.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50917(U))The provider's mailing affidavit raised a factual issue over receipt of verification, defeating the insurer's premature-action defense on summary judgment.