April 27, 2012
Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 50774(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-liberty-mut-fire-ins-co-2012-ny-slip-op50774u/
- Decided
- April 27, 2012
- Citation
- 2012 NY Slip Op 50774(U) · 35 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- 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 Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 50774(U))
| Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co. |
| 2012 NY Slip Op 50774(U) [35 Misc 3d 135(A)] |
| Decided on April 27, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.
against
Liberty Mutual Fire Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 5, 2010, deemed from a judgment of the same court entered March 24, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 5, 2010 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 $1,773.25.
ORDERED that the judgment is reversed, without costs, the order entered March 5, 2010 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 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint. After a judgment was entered, plaintiff appealed from the order. We deem plaintiff’s appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).
The affidavit of defendant’s claim specialist established that defendant had timely mailed 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]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim specialist was also sufficient to establish that plaintiff had failed to respond to those requests. It is noted that plaintiff never alleged that it had responded.
Consequently, the 30-day period within which defendant was required to pay or deny plaintiff’s claims did not commence to run and plaintiff’s action is premature (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]). Thus, defendant’s cross motion should have been granted. In light of the foregoing, we reach no other issue.
Accordingly, the judgment is reversed, the order entered March 5, 2010 is vacated, [*2]plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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
Held the action premature because the insurer's affidavit established timely verification requests and follow-ups and the provider's failure to respond, which the provider never denied.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 151 (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 claim specialist's affidavit established timely mailing of the verification requests and follow-up requests.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
Cited by
A label shows how the later decision treated this one.
- Infinity Health Prods., Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 52396(U)) FollowedThe provider's action was premature because timely verification requests remained unanswered.
Similar decisions
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51870(U))The provider's business-record foundation and the insurer's proof of timely mailing were insufficient to support their summary judgment motions.
- Infinity Health Prods., Ltd. v Progressive Ins. Co. (2008 NY Slip Op 50345(U))The insurer failed to establish timely mailing of its follow-up verification request because the date stamp contradicted its affidavit.
- Infinity Health Prods. v Amex Assur. Co. (2008 NY Slip Op 51233(U))The provider's billing manager's affidavit failed to establish a business-records foundation for its summary judgment documents.
- Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))The provider's supporting affidavit failed to establish a business-record foundation for the documents submitted on its summary judgment motion.
- Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))The insurer established that it had received no claims for the accident alleged in the complaint, and the provider failed to rebut that showing.