February 26, 2009

D & R Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 50306(U))

https://www.beynensonlaw.com/case-law/d-r-med-supply-inc-v-clarendon-natl-ins-co-2009-ny-slip-op50306u/

Court: Civil Court of the City of New York, Kings County
Judge: Edwards, J.
Decided: February 26, 2009
Citation: 2009 NY Slip Op 50306(U) · 22 Misc 3d 1127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

D & R Med. Supply, Inc. v Clarendon Natl. Ins. Co., 22 Misc 3d 1127(A), 2009 NY Slip Op 50306(U) (Civ Ct, Kings County 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 requested CPT codes and medical records remained outstanding after two follow-up verification requests. The Civil Court, Kings County, dismissed the complaint on competing summary judgment motions. Although the provider proved creation and mailing of its bill, the insurer proved timely service of an initial request for an invoice, codes, and records. The provider supplied only an invoice. The insurer acknowledged that response and twice sought the missing materials, without further response. The provider's affiant described responsibility for verification but did not assert that anyone had responded in this matter. The court placed the obligation to verify the claim on the provider, even if the requested materials were held by the referring physician.

Reported in New York Official Reports at D & R Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 50306(U))

[*1]

D & R Med. Supply, Inc. v Clarendon Natl. Ins. Co.

2009 NY Slip Op 50306(U) [22 Misc 3d 1127(A)]

Decided on February 26, 2009

Civil Court Of The City Of New York, Kings County

Edwards, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2009

Civil Court of the City of New York, Kings County

D & R Medical Supply, Inc. a/a/o Hardy Andrew, Plaintiff,
against
Clarendon National Insurance Company, Defendant.

131695/07

Plaintiff:

Sylvain R. Jakabovics, Esq.

2630 Ocean Avenue, Suite A-3

Brooklyn, NY 11229

Defendant:

Law Offices of Moira A. Doherty

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11553

Genine D. Edwards, J.

In this action, plaintiff seeks to recover no-fault benefits from the defendant. Plaintiff now moves for summary judgment and defendant cross-moves for the same relief.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge of the facts. See CPLR 3212 (b). If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991). Once the movant provides sufficient proof the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact. See Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2d Dept. 1996).

Plaintiff established a prima facie case as to the creation and mailing of the subject bill, in the amount of $1,104.00. Defendant, however, persuasively contends that plaintiff’s lawsuit is premature since the plaintiff failed to comply with outstanding verification requests. Defendant properly proved timely service of its initial verification request for an invoice, CPT codes and medical records. In response, plaintiff provided an invoice, but failed to provide proper CPT codes and medical records. Defendant sent a second and third verification request, acknowledging receipt of plaintiff’s invoice, but indicating that the proper coding and medical records were still [*2]outstanding. There was no further response from the plaintiff. Although plaintiff’s affiant indicated that it was his duty to handle verification requests and responses, he never asserted that he or anyone else did so in this matter.

This Court finds that the burden rests with the plaintiff to properly verify its claim. Plaintiff cannot simply rest on its laurels and ignore a verification request. See Lenox Hill Radiology and MIA P.C. v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 (Civ. Ct. New York County 2008). Defendant did all it could do by sending two follow-up requests. Since the plaintiff desires to be paid, the onus is on it to ensure that the defendant has all of the required information to verify and pay the claim. Plaintiff completely ignored its burden and commenced this action prematurely.

Furthermore, it should be noted that, whether the plaintiff possesses the verification requested or it is in the hands of the referring physician, plaintiff cannot shift its obligation to verify a claim to the defendant.

Accordingly, the complaint is dismissed.

This constitutes the decision and order of this Court.

Dated: February 26, 2009

____________________________

Genine D. Edwards

J.C.C.

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 and dismissed it because the insurer proved a timely initial request and two follow-ups for CPT codes and medical records, and the provider sent only an invoice and never supplied the rest.

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Lenox Hill Radiology & MIA P.C. v Global Liberty Ins. (2008 NY Slip Op 28197) FollowedThe provider's action was premature because it failed to supply properly requested verification concerning its MRI claims.

Cited by

A label shows how the later decision treated this one.

American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U)) FollowedA provider's substantial compliance with reasonable additional verification requests does not make its claims payable.

Similar decisions

D & R Med. Supply v American Tr. Ins. Co. (2011 NY Slip Op 51727(U))The provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.
D & R Med. Supply v Progressive Ins. Co. (2009 NY Slip Op 29139)A provider need not supply verification materials outside its possession, custody or control after advising the insurer that it lacks them.
Triangle R, Inc. v Clarendon Ins. Co. (2010 NY Slip Op 52159(U))The provider's action was premature because timely verification requests remained unanswered when it sued.
DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51304(U))A no-fault claim accrues 30 days after the insurer receives it; a later denial does not postpone accrual.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.