October 5, 2016

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U))

https://www.beynensonlaw.com/case-law/daily-med-equip-distrib-ctr-inc-v-auto-one-ins-co-2016-ny-slip-op51443u/

Court: Appellate Term, Second Department
Decided: October 5, 2016
Citation: 2016 NY Slip Op 51443(U) · 53 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co., 53 Misc 3d 136(A), 2016 NY Slip Op 51443(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 insurer failed to establish mailing of verification requests for two claims and entitlement to dismissal of a third claim. In this action for assigned no-fault benefits, the insurer sought summary judgment dismissing the second and third causes of action as premature because verification remained outstanding. Its affidavits did not establish as a matter of law that the verification requests had been mailed. As to the first cause of action, the court relied on the reasons stated in High Quality Med. Supplies, Inc. v Mercury Ins. Group, the companion appeal decided the same day, No. 2014-1081 K C. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U))

[*1]

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co.

2016 NY Slip Op 51443(U) [53 Misc 3d 136(A)]

Decided on October 5, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-954 K C

Daily Medical Equipment Distribution Center, Inc., as Assignee of JEAN JEAN-PIERRE, Respondent,
against
Auto One Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in High Quality Med. Supplies, Inc., as Assignee of Charles Botwee v Mercury Ins. Group (— Misc 3d —, 2016 NY Slip Op — [appeal No. 2014-1081 K C], decided herewith), defendant has not demonstrated its entitlement to summary judgment dismissing the first cause of action.

Defendant sought summary judgment dismissing the remaining two causes of action on the ground that plaintiff’s attempt to recover upon the claims underlying these causes of action is premature because verification is outstanding (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, the affidavits submitted by defendant were insufficient to establish as a matter of law that defendant had mailed verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant has not demonstrated its entitlement to summary judgment dismissing the second and third causes of action.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 05, 2016

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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavits insufficient to establish as a matter of law that it mailed the verification requests, so its motion on two causes of action failed.

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, 260 (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: Defense rejected because the insurer's requests or proof were deficient

Held the insurer not entitled to dismissal of two causes of action as premature because its affidavits did not establish that the verification requests were mailed.

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, 82 (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)An 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.

Cited by

A label shows how the later decision treated this one.

Medalliance Med. Health Servs. v Travelers Prop. Cas. Ins. Co. (2021 NY Slip Op 50737(U)) FollowedThe insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims.

Similar decisions

Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.
Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient.
Daily Med. Equip. Distrib. Ctr., Inc. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50929(U))The insurer's summary judgment motion asserting that the action was premature for failure to supply requested verification was denied on appeal.
Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co. (2017 NY Slip Op 50958(U))The provider's action was premature because requested verification remained outstanding when suit commenced.
Daily Med. Equip. Distrib. Ctr., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51323(U))The insurer's affidavits established timely and proper mailing of IME scheduling letters and denial forms.