November 26, 2012

Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-eveready-ins-co-2012-ny-slip-op-52184u/

Court: Appellate Term, Second Department
Decided: November 26, 2012
Citation: 2012 NY Slip Op 52184(U) · 37 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Alev Med. Supply, Inc. v Eveready Ins. Co., 37 Misc 3d 137(A), 2012 NY Slip Op 52184(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 the insurer had not received all verification requested before suit commenced. The insurer's claims examiner established timely mailing of initial and follow-up verification requests. The provider did not demonstrate that the outstanding material had been supplied before commencement, so the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, treated the appeal as taken from the ensuing judgment under CPLR 5512 (a), reversed that judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))

[*1]

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

2012 NY Slip Op 52184(U) [37 Misc 3d 137(A)]

Decided on November 26, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through December 3, 2012; it will not be published in the printed Official Reports.

Decided on November 26, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., ALIOTTA and SOLOMON, JJ
2011-1923 Q C.

Alev Medical Supply, Inc. as Assignee of LAMONT BARNER, Respondent,
against
Eveready Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011, deemed from a judgment of the same court entered May 26, 2011 (see CPLR 5512 [a]). The judgment, entered pursuant to the May 2, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,236.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 2, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered May 2, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s appeal is deemed to be from the judgment entered pursuant to the order (see CPLR 5512 [a]).

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s [*2]Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received all of the verification requested, and plaintiff did not demonstrate that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff’s action is premature.

Accordingly, the judgment is reversed, the order entered May 2, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2012

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.

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 requested and followed up on verification, had not received all of it, and the provider showed no response before suit.

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.

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 (rules on the question, but another ground decided the case)

Held the claims examiner's affidavit established timely mailing of the verification requests and follow-up 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.

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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
D & R Med. Supply v American Tr. Ins. Co. (2011 NY Slip Op 51727(U)) FollowedThe provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.

Cited by

Advanced Neurological Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 22373)The provider's failure to respond or object to verification requests rendered its action premature despite missing notice to its attorneys.

Similar decisions

Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))The provider's action was premature because it began before responses to timely verification requests were served.
SS Med. Care, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51305(U))The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested information.
Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.
Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51999(U))The provider's doctor's affirmation failed to rebut the insurer's peer review finding that the medical supplies lacked medical necessity.
Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))The insurer's unrebutted peer review report established that the medical supplies lacked medical necessity.