December 17, 2014
City Chiropractic, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51802(U))
https://www.beynensonlaw.com/case-law/city-chiropractic-p-c-v-eveready-ins-co-2014-ny-slip-op51802u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51802(U) · 46 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- Verification requests
- Legal questions
- Outstanding verification and premature actions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at City Chiropractic, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51802(U))
| City Chiropractic, P.C. v Eveready Ins. Co. |
| 2014 NY Slip Op 51802(U) [46 Misc 3d 128(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-920 K C
against
Eveready Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 16, 2011, deemed from a judgment of the same court entered February 17, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2011 order 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 $3,087.90.
ORDERED that the judgment is reversed, with $30 costs, the order entered December 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification request and follow-up verification requests (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]). Defendant demonstrated that it had not received all of the verification requested, and, in opposition to defendant’s cross motion, plaintiff did not show that such verification had been provided to defendant prior to the commencement of this action. Consequently, the 30-day period within which defendant was required to pay or deny the claims at issue 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, plaintiff’s action is premature.
Accordingly, the judgment is reversed, the order entered December 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
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.
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 the action premature because the insurer timely mailed verification and follow-up requests, had not received all requested verification, and the provider did not show it was provided before suit.
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.
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 claims examiner's affidavit established timely mailing of the verification request and follow-up requests, supporting dismissal as premature.
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
- 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.
- 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
- SS Med. Care, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51305(U))The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested information.
- 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.
- D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50649(U))The provider's action was premature because requested verification remained outstanding despite follow-up requests mailed on the 30th day.
- Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))The insurer's verification requests were timely, but a factual issue remained as to whether the provider adequately responded.
- J.C. Healing Touch Rehab, P.C. v Eveready Ins. Co. (2014 NY Slip Op 50774(U))The insurer's cross motion for summary judgment on lack of medical necessity was denied, leaving only whether verification was outstanding for trial.