December 22, 2017

Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))

https://www.beynensonlaw.com/case-law/active-chiropractic-p-c-v-country-wide-ins-co-2017-ny-slip-op51850u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51850(U) · 58 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Active Chiropractic, P.C. v Country-Wide Ins. Co., 58 Misc 3d 139(A), 2017 NY Slip Op 51850(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding. After receiving the claim, the insurer timely mailed initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.8 (l). It demonstrated nonreceipt of the requested material, and the provider failed to show that verification had been supplied before suit. Under 11 NYCRR 65-3.5 (c) and 11 NYCRR 65-3.8 (a), the payment or denial period had not begun. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and granting the insurer summary judgment dismissing that claim; the provider's remaining verification contentions lacked merit.

Reported in New York Official Reports at Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))

[*1]

Active Chiropractic, P.C. v Country-Wide Ins. Co.

2017 NY Slip Op 51850(U) [58 Misc 3d 139(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-151 Q C

Active Chiropractic, P.C., as Assignee of Chambers Jaren, Appellant,
against
Country-Wide Ins. Co., Respondent.

Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 1, 2014. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

Contrary to plaintiff’s contention, defendant established that, after receiving the $290.64 claim at issue, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior [*2]to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Plaintiff’s remaining contentions regarding the verification requested by defendant lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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.

Proof of mailing

Open the full map

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

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Rejected the provider's challenge and held the insurer established that, after receiving the claim, it timely mailed initial and follow-up verification requests.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

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 claim not overdue and properly dismissed because the insurer timely requested verification, never received it, and the provider did not show it was provided before suit.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

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.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Similar decisions

MT Servs. P.T., P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51851(U))The insurer's 30-day period to pay or deny had not begun because timely requested verification remained outstanding when the provider sued.
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.
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.
D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U))The insurer's verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature.
Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.