January 12, 2010
Quality Rehab & P.T., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50067(U))
https://www.beynensonlaw.com/case-law/quality-rehab-p-t-p-c-v-geico-ins-co-2010-ny-slip-op50067u/
- Decided
- January 12, 2010
- Citation
- 2010 NY Slip Op 50067(U) · 26 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Quality Rehab & P.T., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50067(U))
| Quality Rehab & P.T., P.C. v GEICO Ins. Co. |
| 2010 NY Slip Op 50067(U) [26 Misc 3d 132(A)] |
| Decided on January 12, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-2036 Q C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 22, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2008 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 $292.94.
ORDERED that the judgment is reversed without costs, the order entered September
22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and
defendant’s cross motion for summary judgment dismissing the complaint is granted,
without prejudice to plaintiff commencing a new action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it had been commenced before defendant had received responses to its outstanding verification requests. By order entered September 22, 2008, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from said order is deemed to be from the judgment which was subsequently entered pursuant thereto (see CPLR 5501 [c]).
On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim representative sufficiently established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the [*2]commencement of the action, with the verification, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; 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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]).
Accordingly, the judgment is reversed, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010
Legal questions (3)
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 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 claim representative's affidavit sufficiently established timely mailing of the initial and follow-up verification requests, reversing the contrary finding below.
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.
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 without prejudice because the provider did not show it supplied the timely requested verification before suit, so the 30-day period never began.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Rejected the insurer's argument that the billing manager's affidavit failed to make the annexed claim documents admissible as business records, but the result rested on outstanding verification.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- 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.
- Vista Surgical Supplies, Inc. v General Assur. Co. (2006 NY Slip Op 51034(U)) FollowedThe provider's action was premature because timely verification requests remained unanswered when the action began.
- Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038) FollowedThe hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
Similar decisions
- Quality Health Prods. v Country-Wide Ins. Co. (2012 NY Slip Op 51641(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
- Triangle R, Inc. v GEICO Ins. Co. (2010 NY Slip Op 50885(U))The provider's action was premature because it had not supplied requested verification before commencing suit.
- Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51645(U))The provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production.
- High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.
- Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. (2009 NY Slip Op 50456(U))The provider won summary judgment on its first cause of action because the insurer failed to prove mailing of IME requests or nonappearance.