July 9, 2009

Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))

https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-eveready-ins-co-2009-ny-slip-op-51492u/

Court: Appellate Term, Second Department
Decided: July 9, 2009
Citation: 2009 NY Slip Op 51492(U) · 24 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Verification requests
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135(A), 2009 NY Slip Op 51492(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 provider's action was premature because it began before responses to timely verification requests were served. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion for summary judgment dismissing the complaint. The record showed timely mailing of initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Because the provider had not responded before commencing suit, the insurer's time to pay or deny under 11 NYCRR 65-3.8 (a) had not elapsed. The court reached no other issue.

Reported in New York Official Reports at Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))

[*1]

Alur Med. Supply, Inc. v Eveready Ins. Co.

2009 NY Slip Op 51492(U) [24 Misc 3d 135(A)]

Decided on July 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 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
2008-363 Q C.

Alur Medical Supply, Inc. as assignee of GLORIA BRYANT, Respondent,
against
Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 3, 2008, deemed from a judgment of the same court entered February 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,864.25.

Judgment reversed without costs, order entered January 3, 2008 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

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 was commenced before defendant received responses to its outstanding verification requests. The Civil Court granted plaintiff’s motion and implicitly denied defendant’s cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The record demonstrates that defendant timely mailed requests for verification and follow-up requests for verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s cross motion to dismiss the action as premature should have been granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York [*2]Cent. Mut. 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]).

In light of the foregoing, we reach no other issue.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 09, 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: Timely requests went unanswered; the claim is not overdue and the action is premature

Held the action premature because the insurer timely mailed verification and follow-up requests and the provider served no responses before suing, so the time to pay or deny had not elapsed.

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

Cited in this decision

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

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.

Cited by

A label shows how the later decision treated this one.

Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U)) FollowedThe provider's action was premature because timely mailed verification requests remained unanswered when the action began.

Similar decisions

Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))The provider's action was premature because the insurer had not received all verification requested before suit commenced.
Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))The insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))The provider failed to prove submission of its claim because its mailing certificate identified a different insurer.
Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.