May 14, 2013

Ortho Prods. & Equipments, Inc. v Eveready Ins. Co. (2013 NY Slip Op 50856(U))

https://www.beynensonlaw.com/case-law/ortho-prods-equipments-inc-v-eveready-ins-co-2013-ny-slip-op50856u/

Court: Appellate Term, Second Department
Decided: May 14, 2013
Citation: 2013 NY Slip Op 50856(U) · 39 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Ortho Prods. & Equipments, Inc. v Eveready Ins. Co., 39 Misc 3d 146(A), 2013 NY Slip Op 50856(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 provider's action was premature because its claim forms lacked substantially the same information as NF-3 forms requested in verification. The insurer's claims examiner established timely mailing of initial and follow-up requests seeking prescribed NF-3 forms and other verification. Under 11 NYCRR 65-3.5 (f), an insurer must accept an alternative form containing substantially the same information, but may require the prescribed form. The provider's forms did not meet that standard, and it did not demonstrate full compliance before suit. The 30-day payment or denial period under 11 NYCRR 65-3.8 (a) had not begun. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's summary judgment cross motion; remaining insurer arguments were not reached.

Reported in New York Official Reports at Ortho Prods. & Equipments, Inc. v Eveready Ins. Co. (2013 NY Slip Op 50856(U))

[*1]

Ortho Prods. & Equipments, Inc. v Eveready Ins. Co.

2013 NY Slip Op 50856(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2013

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-2830 K C.

Ortho Products & Equipments, Inc. as Assignee of SYLVIA COOPER-BROWN, Respondent, —
against
Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 4, 2011, deemed from a judgment of the same court entered September 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 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 $1,564.50.

ORDERED that the judgment is reversed, with $30 costs, the order entered August 4, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature since plaintiff had failed to provide all of the requested verification. Defendant appeals from an order of the Civil Court entered August 4, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross [*2]motion for summary judgment dismissing the complaint. A judgment was subsequently entered in favor of plaintiff, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (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]) its request and follow-up request for verification, which sought, among other things, prescribed NF-3 claim forms. With respect to the prescribed claim forms, the Insurance Department Regulations provide that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]). The regulation further permits an insurer to require submission of the prescribed form (id.). Contrary to the determination of the Civil Court, the information contained in the claim forms which plaintiff submitted to defendant was not “substantially the same information” (Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]) as required to be set forth on a prescribed NF-3 form (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., ___ AD3d___, 2013 NY Slip Op 02390 [2d Dept 2013]).

Since plaintiff did not demonstrate that it had provided defendant with all of the requested verification prior to the commencement of this action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the judgment is reversed, the order entered August 4, 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 light of our determination, we do not reach defendant’s remaining contentions.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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

Held the action premature because the provider's non-prescribed forms lacked substantially the same information as an NF-3, so the requested prescribed forms remained outstanding and the 30-day period never began.

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.

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 claims examiner's affidavit established timely mailing of the request and follow-up request for verification seeking prescribed NF-3 forms.

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.

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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 02390) FollowedThe hospital's UB-04 form was not the functional equivalent of an NF-5 and did not support tolling before receipt of the NF-5.
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.

Cited by

American Tr. Ins. Co. v U.S. Med Supply Corp. (2023 NY Slip Op 50560(U))A provider invoking collateral estoppel from a prior no-fault award need not prove master arbitrator affirmance or judicial confirmation.

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.
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.
Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.
Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))The provider's action was premature because the insurer had not received all verification requested before suit commenced.
Orthoplus Prods., Inc. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51003(U))The provider's action was premature because requested verification remained outstanding, despite its asserted submission of some documents.