December 9, 2015

Parkview Med. Advanced, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51873(U))

https://www.beynensonlaw.com/case-law/parkview-med-advanced-p-c-v-travelers-ins-co-2015-ny-slip-op51873u/

Court: Appellate Term, Second Department
Decided: December 9, 2015
Citation: 2015 NY Slip Op 51873(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Parkview Med. Advanced, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51873(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 established that eight claims were premature because timely requested verification remained outstanding. In this assigned-benefits action, the insurer's unopposed cross motion established timely mailing of initial and follow-up verification requests for the first through seventh and ninth causes of action, but not the eighth. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny the eight claims had not begun. The Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment on those claims, granted the insurer summary judgment dismissing them, and remitted for judgment for the provider on the eighth claim with statutory interest and attorney's fees under Insurance Law § 5106. The court did not pass on the provider's uncontested prima facie case.

Reported in New York Official Reports at Parkview Med. Advanced, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51873(U))

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

Parkview Medical Advanced, P.C. as Assignee of Allen Haynes, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 26, 2014. The judgment, entered pursuant to an order entered March 12, 2014 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,939.10.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 12, 2014 as granted the branches of plaintiff’s motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon.

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 on the ground that the action is premature inasmuch as plaintiff had failed to provide requested additional verification of the claims in question. By order entered March 12, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s unopposed cross motion. Defendant appeals from a judgment entered March 26, 2014 pursuant to the March 12, 2014 order.

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavits of defendant’s claim representative and mail center employee established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its requests and follow-up requests for additional verification of the claims, with the exception of the claim for $121.18, upon which the eighth cause of action of the complaint was based. As to the first through seventh and the ninth causes of action, defendant demonstrated that it had not received the requested verification, and plaintiff did not oppose defendant’s cross motion. Consequently, the 30-day period within which defendant was [*2]required to pay or deny the claims on those causes of action did not begin to run (see 11 NYCRR § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and, thus, the first through seventh and the ninth causes of action are premature.

Accordingly, the judgment is reversed, so much of the order entered March 12, 2014 as granted the branches of plaintiff’s motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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

Decision Date: December 09, 2015

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

Held the claim representative's and mail center employee's affidavits proved timely mailing of the verification requests and follow-ups for all claims except one, on which the insurer's mailing was not established.

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

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held eight causes of action premature because the insurer proved timely requests and follow-ups and non-receipt of verification, while the remaining claim, lacking proof of a timely request, was awarded to the provider.

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

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413)The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
D & R Med. Supply v American Tr. Ins. Co. (2011 NY Slip Op 51727(U))The provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.

Similar decisions

Parkview Med. & Surgical, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50491(U))The provider's first cause of action was premature because timely requested verification remained outstanding when suit began.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.