November 26, 2012
Oriental World Acupuncture, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 52181(U))
https://www.beynensonlaw.com/case-law/oriental-world-acupuncture-p-c-v-american-tr-ins-co-2012-ny-slip-op52181u/
- Decided
- November 26, 2012
- Citation
- 2012 NY Slip Op 52181(U) · 37 Misc 3d 137(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 Oriental World Acupuncture, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 52181(U))
| Oriental World Acupuncture, P.C. v American Tr. Ins. Co. |
| 2012 NY Slip Op 52181(U) [37 Misc 3d 137(A)] |
| Decided on November 26, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through December 3, 2012; it will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
2011-786 K C.
against
American Transit Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered January 12, 2011. The order granted defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint and, upon reargument, vacated the prior order and granted defendant’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to receive no-fault benefits since plaintiff had failed to respond to its verification requests. By order dated March 4, 2010, the Civil Court denied both motions, and found that plaintiff had “established [its] prima facie case” and that defendant had “established its proper and timely mailing of its denials.” Thereafter, defendant moved for leave to reargue its cross motion for summary judgment. The Civil Court granted leave to reargue and, upon reargument, granted defendant summary judgment dismissing the complaint, finding that since plaintiff had [*2]not responded to defendant’s verification requests, defendant “does not have to pay or deny a claim until it has received all relevant verification [and, therefore,] the within action was prematurely commenced.”
The affidavit submitted by defendant in support of its cross motion established that defendant had timely mailed its requests 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]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, 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]; 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]). As a result, defendant established its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 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.
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
Upheld dismissal as premature because the insurer timely mailed verification requests and follow-ups and never received the verification, and the provider did not show it was provided before suit, so the 30 days never ran.
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 insurer's affidavit established timely mailing of its verification requests and follow-up requests.
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.
- 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.
- Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe 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)) FollowedThe provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.
Similar decisions
- AIM Acupuncture, P.C. v Travelers Ins. Co. (2012 NY Slip Op 51773(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
- Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
- Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))The insurer established timely IME scheduling, the assignor's nonappearance and timely denials, warranting dismissal of the claims.
- Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
- Natural Therapy Acupuncture, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51350(U))The insurer established deductible and fee schedule defenses to three claims and nonreceipt of the claim underlying the second cause of action.