July 27, 2015

Tam Med. Supply Corp. v Lancer Ins. Co. (2015 NY Slip Op 51126(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-lancer-ins-co-2015-ny-slip-op51126u/

Court: Appellate Term, Second Department
Decided: July 27, 2015
Citation: 2015 NY Slip Op 51126(U) · 48 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Tam Med. Supply Corp. v Lancer Ins. Co., 48 Misc 3d 136(A), 2015 NY Slip Op 51126(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 failed to establish nonreceipt of requested verification, despite proving timely mailing of initial and follow-up requests. The Civil Court had dismissed the provider's action for assigned no-fault benefits as premature. A claim need not be paid or denied until all demanded verification is supplied, and an action is premature when the provider fails to respond to a verification request. Nevertheless, proof of timely requests did not establish that the insurer had not received the verification. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for, in effect, summary judgment dismissing the complaint; it did not reach the insurer's remaining contention.

Reported in New York Official Reports at Tam Med. Supply Corp. v Lancer Ins. Co. (2015 NY Slip Op 51126(U))

[*1]

Tam Med. Supply Corp. v Lancer Ins. Co.

2015 NY Slip Op 51126(U) [48 Misc 3d 136(A)]

Decided on July 27, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1240 Q C

Tam Medical Supply Corp. as Assignee of MAGALIE DAMIS, Appellant,
against
Lancer Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2013. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for, in effect, 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, in effect, summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had not provided verification as requested by defendant.

Since a claim need not be paid or denied until all demanded verification with respect thereto is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). In support of its motion, defendant demonstrated that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, upon a review of the record, we find that defendant did not demonstrate, prima facie, that it had not received the requested verification. Consequently, defendant is not entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, we need not reach defendant’s remaining contention.

Accordingly, the order is reversed and defendant’s motion for, in effect, summary judgment dismissing the complaint is denied.

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

Decision Date: July 27, 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.

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 as premature because, although its requests were timely mailed, it did not demonstrate prima facie that it had not received the requested verification.

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.

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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer demonstrated timely mailing of its initial and follow-up verification requests.

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

Cited in this decision

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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Similar decisions

Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))The provider's owner's affidavit raised a triable issue as to receipt of requested verification, defeating summary judgment on prematurity.
Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))The provider's affidavit raised a factual issue over whether requested verification remained outstanding.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51319(U))The insurer established proper mailing of verification requests and nonreceipt of the requested verification, rendering the action premature.
Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))The provider's proof of mailing requested verification raised a factual issue over whether its no-fault action was premature.
TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51248(U))The provider's affidavit created a presumption of verification receipt and raised a triable issue concerning prematurity.