March 27, 2006
Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 50477(U))
https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-nationwide-mut-ins-co-2006-ny-slip-op-50477u/
- Decided
- March 27, 2006
- Citation
- 2006 NY Slip Op 50477(U) · 11 Misc 3d 135(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 Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 50477(U))
| Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co. |
| 2006 NY Slip Op 50477(U) [11 Misc 3d 135(A)] |
| Decided on March 27, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-586 K C. NO. 2005-586 K C
against
Nationwide Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered March 15, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion is granted dismissing the complaint.
In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Defendant, in opposition to plaintiff’s motion and in support of its cross motion for summary judgment, contended that it was not obligated to pay or deny a claim until requested verification had been provided (see 11 NYCRR 65-3.8 [b] [3]), and that plaintiff and its assignor [*2]had failed to respond to its timely requests for verification in the form of an examination under oath. Inasmuch as plaintiff and its assignor did not respond to its verification requests, the period within which it was required to respond to plaintiff’s claims did not begin to run, and any claim for payment was premature (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, plaintiff’s motion for summary judgment was properly denied.
While defendant did not cross-appeal from so much of the order as denied its cross motion, we note that an appellate court may search the record and grant summary judgment in favor of a party even in the absence of an appeal by that party with respect to a cause of action or issue that is the subject of the motion before the court (CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Urias v Orange County Agric. Socy., 7 AD3d 515 [2004]; Novoselov v Rizzo, 6 Misc 3d 132[A], 2005 NY Slip Op 50104[U] [App Term, 2d & 11th Jud Dists]).
In searching the record, and in view of our determination herein that plaintiff did not respond to defendant’s requests for verification, it is our opinion that defendant’s cross motion for summary judgment should be granted and the complaint dismissed (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; Elite Chiropractic Servs., P.C. v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op 51735[U] [App Term, 1st Dept]).
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
[*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
OCEAN DIAGNOSTIC IMAGING, P.C.
a/a/o Dennis Sandiford,
Appellant,
-against-
NATIONWIDE MUTUAL INSURANCE COMPANY,
Respondent.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 27, 2006
Legal questions (2)
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 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 claim premature, and on searching the record dismissed the complaint, because the provider and its assignor never responded to the insurer's timely verification requests in the form of an EUO, so the 30 days never began.
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.
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)
Held the provider made its prima facie showing by proving it submitted the claims stating the fact and amount of loss and that payment was overdue, shifting the burden to the insurer.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- 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.
- Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 05278)A hospital's no-fault claim was premature because requested verification of the assignor's post-accident blood alcohol level remained outstanding.
- Elite Chiropractic Servs., PC v Travelers Ins. Co. (2005 NY Slip Op 51735(U))An insurer is not obligated to pay or deny a no-fault claim until requested verification has been provided.
Cited by
- A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
- A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
Similar decisions
- Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50790(U))The insurer's affidavits raised a factual issue whether the claimed injuries arose from an insured incident.
- Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U))The insurer's EUO request and nonspecific investigation letters did not toll the 30-day period for paying or denying the provider's claim.
- Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51080(U))The insurer's affidavit raised a coverage issue based on a founded belief of insurance fraud despite its untimely denial.
- Ocean Diagnostic Imaging P.C. v General Assur. Co. (2005 NY Slip Op 51155(U))A provider that proves its claim and the amount of loss need not undergo a separate damages assessment after obtaining summary judgment.
- Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50743(U))The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests.