July 14, 2009

D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U))

https://www.beynensonlaw.com/case-law/d-s-chiropractic-p-c-v-country-wide-ins-co-2009-ny-slip-op51579u/

Court: Appellate Term, Second Department
Decided: July 14, 2009
Citation: 2009 NY Slip Op 51579(U) · 24 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests Provider's prima facie case
Legal questions: Outstanding verification and premature actions · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 24 Misc 3d 138(A), 2009 NY Slip Op 51579(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 verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature. The Appellate Term, Second Department, affirmed judgment granting the provider summary judgment and implicitly denying the insurer's cross motion. Applying General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the court found the follow-ups premature, so they did not toll the 30-day claim-determination period under 11 NYCRR 65-3.8. The provider's billing-manager affidavit established that its supporting documents were admissible under CPLR 4518. The insurer's claims representative conceded receipt of the claims, curing any deficiency in the provider's proof of mailing.

Reported in New York Official Reports at D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U))

[*1]

D.S. Chiropractic, P.C. v Country-Wide Ins. Co.

2009 NY Slip Op 51579(U) [24 Misc 3d 138(A)]

Decided on July 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1090 Q C.

D.S. Chiropractic, P.C. as assignee of MARIAN PLANTT, Respondent,
against
Country-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered April 7, 2008, deemed from a judgment of the same court entered May 28, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 7, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s motion for summary judgment, awarded plaintiff the principal sum of $459.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment, finding that after defendant initially requested verification of the claims, defendant failed to allow 30 days to pass before issuing second requests. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form 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]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Consequently, defendant’s contention that the instant action is premature lacks merit. Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

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.

Outstanding verification and premature actions

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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 day after the initial requests, were premature and without effect, so the claim period was not tolled and the prematurity defense failed.

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

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category.

Claimant's prima facie case on motions

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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 challenge because the billing manager's affidavit made the claim documents admissible as business records and the insurer's conceded receipt cured any defect in proof of mailing.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held any deficiency in the provider's proof of mailing its claim forms was cured by the insurer's claims representative's affidavit conceding 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (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.
East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U)) FollowedThe insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim.
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

Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.
City Chiropractic, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51802(U))The provider's action was premature because it did not show that all requested verification had been supplied before suit.
Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))The insurer's verification requests were timely, but a factual issue remained as to whether the provider adequately responded.
First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50594(U))The provider's claims failed in part for outstanding verification and duplicate billing, while separate reimbursement remained disputed.
Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.