December 17, 2014

Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))

https://www.beynensonlaw.com/case-law/northshore-chiropractic-diagnostics-p-c-v-a-cent-ins-co-2014-ny-slipop-51825u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51825(U) · 46 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co., 46 Misc 3d 131(A), 2014 NY Slip Op 51825(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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's verification requests were timely, but a factual issue remained as to whether the provider adequately responded. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment cross motion and affirmed denial of the insurer's motion to dismiss the complaint as premature. Contrary to Civil Court's finding, the insurer established timely mailing of both initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). A claim need not be paid or denied until all duly requested verification is supplied, and an action is premature if a provider fails to respond to timely requests. The unresolved adequacy of the provider's responses prevented summary judgment for either side.

Reported in New York Official Reports at Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))

[*1]

Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co.

2014 NY Slip Op 51825(U) [46 Misc 3d 131(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1790 RI C

Northshore Chiropractic Diagnostics, P.C. as Assignee of JOHN JACOBS, Respondent,
against
A. Central Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered June 28, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant moved for summary judgment dismissing the complaint, arguing that the

action is premature because plaintiff had not provided verification as requested by defendant, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant’s initial verification request was untimely. Since a claim need not be paid or denied until all duly requested verification 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 a provider has failed to respond to a timely 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 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]). Contrary to the finding of the Civil Court, both sets of requests were timely mailed (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). However, upon the record before us, we find that there is a triable issue of fact as to whether plaintiff adequately responded to those verification requests. Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

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

Decision Date: December 17, 2014

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

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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 the verification requests timely mailed but found a triable issue whether the provider adequately responded, so neither side obtained summary judgment on the prematurity defense.

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.

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 that it mailed its initial and follow-up verification requests and that both sets were timely, contrary to the lower court's finding.

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

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)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

Island Chiropractic Testing, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51795(U))The provider's verification responses presented a factual dispute that precluded summary judgment for either party.
Lefferts Gardens Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50599(U))The provider's action was premature because it failed to respond to the insurer's timely and proper verification requests.
Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.
City Chiropractic, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51802(U))The provider's action was premature because it did not show that all requested verification had been supplied before suit.
Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))The provider's mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature.