June 22, 2016

Compas Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51000(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-praetorian-ins-co-2016-ny-slip-op51000u/

Court: Appellate Term, Second Department
Decided: June 22, 2016
Citation: 2016 NY Slip Op 51000(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Timeliness and preclusion Verification requests
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Compas Med., P.C. v Praetorian Ins. Co., 2016 NY Slip Op 51000(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 its fraudulent-procurement defense, and the provider raised a factual issue about outstanding verification. For the first three causes of action, the insurer failed to establish timely mailing of EUO scheduling letters to toll the denial period or that the assignor's address misrepresentation was material. For the fourth through sixth causes of action, the insurer showed timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a), but the provider's owner's affidavit raised a presumption of mailing and receipt. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion. Denial of the provider's motion remained intact because it proved neither untimely denials nor timely denials deficient as a matter of law.

Reported in New York Official Reports at Compas Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51000(U))

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

Compas Medical, P.C., as Assignee of NELSON JOSNER, Appellant,
against
Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 2, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. With respect to the first through third causes of action, defendant contended that it had timely denied the claims based on plaintiff’s assignor’s fraudulent procurement of the insurance policy, in that plaintiff’s assignor had materially misrepresented his address in order to procure a lower insurance premium. Defendant further contended that the remaining claims (the fourth through sixth causes of action) were premature, as there were outstanding verification requests. By order entered October 2, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff’s motion was properly denied, as plaintiff did not demonstrate either that defendant had failed to deny the claims at issue within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Defendant’s cross motion should also have been denied. With respect to the first through third causes of action, defendant failed to establish that it had timely mailed letters scheduling plaintiff’s assignor’s examination under oath (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); therefore, defendant failed to demonstrate, as a matter of law, that it had tolled its time to deny those claims on the proffered ground of fraudulent procurement of the insurance policy (see Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2014]). Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.

With respect to the fourth through sixth causes of action, defendant’s claims examiner submitted an affidavit establishing the timely mailing of its verification requests and its follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant also demonstrated prima facie that the requested verification information had not been received (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in response to the cross motion, plaintiff’s owner submitted an affidavit which was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (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]). Thus, a triable issue of fact exists as to whether causes of action four through six are premature (see id.).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: June 22, 2016

Legal questions (3)

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to show the claims were not denied within 30 days or that timely denials were conclusory, vague or without merit, so its summary judgment motion was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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: Different mailing results for different documents or claims in one decision

Held the insurer failed to prove timely mailing of EUO scheduling letters, so it did not toll its time to deny three claims, while its verification requests were proved mailed but the provider's affidavit raised a presumption its responses were mailed.

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, 55 (this one included) are in the same category.

Outstanding verification and premature actions

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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 despite proof of mailed verification and follow-up requests and non-receipt, the provider's owner's affidavit raised a presumption the verification was mailed and received, creating a triable issue on prematurity.

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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.
Great Health Care Chiropractic, P.C. v Hanover Ins. Co. (2014 NY Slip Op 50359(U)) FollowedThe insurer's fraudulent-procurement defense was precluded because it failed to establish a timely denial on that ground.
Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U)) FollowedThe provider's action was premature because it had not answered timely mailed verification requests before commencing suit.
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.
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 American Tr. Ins. Co. (2017 NY Slip Op 51194(U))The provider's mailing affidavit raised a factual issue over whether its claims were premature for outstanding 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 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.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51824(U))The insurer rebutted presumed receipt of one claim, leaving a factual issue, and proved IME and EUO nonappearances on the remaining claims.