May 8, 2009

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 52501(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-country-wide-ins-co-2009-ny-slip-op52501u/

Court: Appellate Term, Second Department
Decided: May 8, 2009
Citation: 2009 NY Slip Op 52501(U) · 25 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 25 Misc 3d 142(A), 2009 NY Slip Op 52501(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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's follow-up verification requests mailed on the 30th calendar day after its initial requests were premature and ineffective. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion in the provider's action for assigned no-fault benefits. The majority relied on General Construction Law § 20, 11 NYCRR 65-3.6 (b), and St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., the companion appeal decided the same day, No. 2008-437 Q C. One judge dissented and would have reversed and granted the insurer's motion for the reasons stated in the dissent in that companion appeal.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 52501(U))

[*1]

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co.

2009 NY Slip Op 52501(U) [25 Misc 3d 142(A)]

Decided on May 8, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1327 Q C.

Delta Diagnostic Radiology, P.C. as assignee of O’NEAL DIXON, Respondent,
against
Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 1, 2007. The order denied defendant’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied defendant’s motion for summary judgment. Defendant appeals and we affirm.

Defendant’s follow-up verification requests, mailed on the 30th calendar day after it mailed the verification requests, were premature and without effect (see
General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op _____ [No. 2008-437 Q C], decided herewith; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, defendant’s motion for summary judgment was properly denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the order and grant defendant’s motion for summary judgment for the reasons stated in his dissenting opinion in St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op _____ [No. 2008-437 Q C], [*2]decided herewith).
Decision Date: May 08, 2009

Legal questions

A question 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.

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: Defense rejected because the insurer's requests or proof were deficient

Held the follow-up verification requests, mailed on the 30th calendar day after the initial requests, premature and without effect, so the insurer's summary judgment motion on the verification defense was properly denied.

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, 78 (this one included) are in the same category.

Cited in this decision

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

Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271) FollowedThe insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.

Similar decisions

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00174)The insurer's follow-up verification requests sent on the 30th day after its initial requests were effective under the circumstances.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.
Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50673(U))The provider's appeal from an order compelling depositions became academic after the action was dismissed for noncompliance.
Delta Diagnostic Radiology, P.C. v General Assur. Co. (2007 NY Slip Op 51616(U))The provider failed to establish a prima facie case because its corporate officer did not lay a foundation for the attached business records.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50293(U))The insurer failed to establish timely denials because it mailed them more than 30 days after receiving the claims without proving tolling.