November 30, 2012

GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co. (2012 NY Slip Op 52195(U))

https://www.beynensonlaw.com/case-law/gnk-med-supply-inc-v-tri-state-consumer-ins-co-2012-ny-slip-op52195u/

Court: Appellate Term, First Department
Decided: November 30, 2012
Citation: 2012 NY Slip Op 52195(U) · 37 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138(A), 2012 NY Slip Op 52195(U) (App Term, 1st Dept 2012)

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 the provider's claim was premature because properly mailed verification requests went unanswered. Its proof established timely mailing of initial and follow-up requests to the provider's attorney, as authorized by counsel's prior correspondence. Counsel's conclusory denial of receipt did not raise a triable issue. The requirement in 11 NYCRR 65-3.6 (b) to send a delay letter to both the applicant and counsel applied only when information was sought from someone other than the applicant, a circumstance absent here. The Appellate Term, First Department, reversed the order, granted the insurer's summary judgment motion, and dismissed the complaint.

Reported in New York Official Reports at GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co. (2012 NY Slip Op 52195(U))

[*1]

GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co.

2012 NY Slip Op 52195(U) [37 Misc 3d 138(A)]

Decided on November 30, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through December 10, 2012; it will not be published in the printed Official Reports.

Decided on November 30, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570582/12.

GNK Medical Supply, Inc., a/a/o Oswald Tucker, Plaintiff-Respondent,
against
Tri-State Consumer Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Manuel J. Mendez, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, the evidentiary proof submitted by defendant-insurer was sufficient to establish, prima facie, that its initial and follow-up verification letters were timely and properly mailed to the plaintiff medical provider’s attorney (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]), as authorized by plaintiff’s counsel’s prior correspondence to defendant (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]). It being undisputed that plaintiff failed to respond to these verification requests, defendant established entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

In opposition, plaintiff’s attorney’s conclusory denial of receipt of the verification letters was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]). We also reject plaintiff’s claim that 11 NYCRR 65-3.6(b) required defendant to issue a delay letter to both plaintiff and its attorney, since that requirement applies only in circumstances, not here present, where information is sought from a party other than the applicant (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 30, 2012

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: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer's proof established timely and proper mailing of initial and follow-up verification letters to the provider's attorney, and counsel's conclusory denial of receipt did not raise a triable issue.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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 and dismissed it because the provider undisputedly never answered the timely mailed verification requests, and no separate delay letter to counsel was required.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 23 (this one included) are in the same category. 4 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 04486) FollowedThe providers proved claim mailing, and the insurer waived assignment objections by failing to seek verification within 10 days.
St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00214) FollowedThe insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature.
Doshi Diagnostic Imaging Servs. v State Farm Ins. Co. (2007 NY Slip Op 27193) FollowedAn insurer may request medical-necessity verification from a prescribing physician if it properly notifies the applicant of outstanding requests.

Cited by

Advantage Radiology, P.C. v Nationwide Mut. Ins. Co. (2017 NY Slip Op 27061)An insurer need not send counsel a delay letter when verification is sought directly from the provider.
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.
American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U))A provider's substantial compliance with reasonable additional verification requests does not make its claims payable.
Recover Med. Servs., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51892(U))EUO requests sent more than 30 days after receipt of bills are nullities as to those bills.

Similar decisions

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U))The provider failed to rebut presumed receipt of verification requests because its affidavit did not show anyone checked its computer records.
Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51634(U))Under 11 NYCRR 65-3.8 (b) (3), an insurer need not pay or deny a no-fault claim until it receives the requested verification.
T & S Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51453(U))The provider's affidavit raised a triable issue as to whether it had supplied the requested verification.
Triangle R, Inc. v Tri-State Consumer Ins. Co. (2013 NY Slip Op 50256(U))The provider's denial of receipt did not rebut proof of timely mailed verification requests, and its unanswered claims were premature.
Skymed Med., P.C. v Tri-State Consumer Ins. (2014 NY Slip Op 51833(U))The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested material.