July 12, 2019
Blackman v Hereford Ins. Co. (2019 NY Slip Op 51166(U))
https://www.beynensonlaw.com/case-law/blackman-v-hereford-ins-co-2019-ny-slip-op-51166u/
- Decided
- July 12, 2019
- Citation
- 2019 NY Slip Op 51166(U) · 64 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Issues
- Verification requests
- Legal questions
- Proof of mailing · Outstanding verification and premature actions (see the maps)
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 Blackman v Hereford Ins. Co. (2019 NY Slip Op 51166(U))
| Blackman v Hereford Ins. Co. |
| 2019 NY Slip Op 51166(U) [64 Misc 3d 137(A)] |
| Decided on July 12, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1226 K C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Andrew Schiavone of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered March 21, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.
Plaintiff correctly argues that the affidavit it submitted in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and thus that there is a triable issue of fact as to whether the verification had been provided.
In light of the triable issue of fact, plaintiff’s cross motion was properly denied.
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received
Held the provider's affidavit sufficient to raise a presumption that the requested verification was mailed to and received by the insurer, creating a triable issue whether it was provided.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Fact issues remain on whether the verification defense applies
Held a triable issue existed as to whether the verification was provided because the provider's affidavit raised a presumption that it was mailed to and received by the insurer.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 114 (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
- Blackman v Nationwide Ins. (2019 NY Slip Op 52038(U))Disputes over receipt of verification and the fee schedule barred summary judgment for either party.
- JPF Med. Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 51372(U))The provider's affidavit raised a factual issue over delivery of requested verification, precluding summary judgment for either side.
- AOM Med. Supply, Inc. v Hereford Ins. Co. (2020 NY Slip Op 51366(U))The insurer established nonreceipt of all requested verification, and dismissal of the provider's complaint without prejudice was affirmed.
- Blackman v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51606(U))The insurer established proper mailing of EUO scheduling letters and the assignor's failure to appear for the scheduled EUOs. The provider appealed an order granting the insurer summary judgment dismissing its assigned first-party no-fault benefits complaint on EUO nonappearance grounds.
- Blackman v Allstate Ins. Co. (2019 NY Slip Op 50750(U))The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was denied on appeal.