September 27, 2016

Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51433(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2016-ny-slip-op51433u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51433(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Provider's prima facie case
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Compas Med., P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51433(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 provider's mailing affidavit raised a triable issue whether requested verification had been received for two claims. Although the insurer's proof established nonreceipt of verification for the first and fifth causes of action, the provider owner's affidavit created a presumption of mailing and receipt, precluding summary judgment dismissing those claims as premature. On the second cause of action, the insurer's description of its mail-receipt practices raised a factual issue whether it had received the claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to the first and fifth causes of action, while affirming denial of the provider's motion on the first, second and fifth causes of action.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51433(U))

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 10, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth 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 and fifth 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, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action.

Contrary to plaintiff’s argument as to the first and fifth causes of action, the proof submitted by defendant was sufficient to demonstrate that defendant had not received requested verification and, thus, that these causes of action 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 by plaintiff’s owner, submitted 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 these causes of action 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 Dists 2015]).

Contrary to plaintiff’s argument with respect to the branch of its motion seeking summary judgment on its second cause of action, defendant sufficiently described its practices and procedures for the receipt of mail so as to raise an issue of fact as to whether it ever received the claim underlying the second cause of action.

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 and fifth causes of action are denied.

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

Decision Date: September 27, 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

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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 owner's affidavit raised a presumption that verification was mailed and received, and the insurer's mail-receipt practices raised a fact issue on receipt of one claim, leaving mailing and receipt for trial.

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 it had not received requested verification, the provider's affidavit raising a presumption of mailing its response created a triable issue whether the two 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 Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
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.