March 17, 2011

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U))

https://www.beynensonlaw.com/case-law/pomona-med-diagnostics-p-c-v-travelers-ins-co-2011-ny-slip-op50447u/

Court: Appellate Term, Second Department
Decided: March 17, 2011
Citation: 2011 NY Slip Op 50447(U) · 31 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127(A), 2011 NY Slip Op 50447(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 it had not answered timely mailed verification requests before commencing suit. The insurer's claims examiner established mailing of the initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) through standard office practices. The medical biller's mere denial of receipt did not overcome the presumption of proper mailing and receipt. Because the provider had not responded before suit, the insurer's time to pay or deny had not begun to run under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, treated the appeal as taken from the ensuing judgment under CPLR 5501 (c) and affirmed dismissal on summary judgment, reaching no other issue.

Reported in New York Official Reports at Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U))

[*1]

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co.

2011 NY Slip Op 50447(U) [31 Misc 3d 127(A)]

Decided on March 17, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-2025 Q C.

Pomona Medical Diagnostics, P.C. as Assignee of FRANCISCO KELLY, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2009, deemed from a judgment of the same court entered September 11, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 13, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action was premature, inasmuch as plaintiff had failed to provide requested verification of the claim. Plaintiff opposed the motion. By ordered entered August 13, 2009, the Civil Court granted defendant’s motion for summary judgment, and this appeal by plaintiff ensued. A judgment was subsequently entered, from which this appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit of defendant’s litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant’s standard office practices and procedures (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]). The mere denial by plaintiff’s medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant’s time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; 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]).

Accordingly, the judgment is affirmed. We reach no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 17, 2011

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 claims examiner's standard-practice affidavit established timely mailing of the verification requests, and the medical biller's mere denial of receipt did not overcome the presumption of receipt.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

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

Upheld dismissal because the insurer timely mailed its verification request and follow-up and the provider served no responses before suit, so the time to pay or deny had not begun.

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

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.

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.
Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038)The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
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.

Cited by

A label shows how the later decision treated this one.

Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U)) FollowedThe assignor's conclusory denial of receiving IME notices failed to rebut the presumption of receipt arising from proper mailing.
Broad St. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50453(U)) FollowedThe insurer obtained dismissal of paid portions of two claims, but inadequate IME proof left the provider entitled to judgment on another claim.
Compas Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51000(U)) FollowedThe insurer failed to establish its fraudulent-procurement defense, and the provider raised a factual issue about outstanding 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.
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 22242)The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue.

Similar decisions

Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))The provider failed to establish mailing of its verification response, leaving its no-fault claim premature.
Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52059(U))The insurer's peer reviews established lack of medical necessity, and the claimed rebuttal letter was absent from the record.
Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51441(U))An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests.
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.
Treka Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51411(U))The insurer established nonreceipt of one claim and outstanding verification for five others.