December 13, 2019

Blackman v Nationwide Ins. (2019 NY Slip Op 52038(U))

https://www.beynensonlaw.com/case-law/blackman-v-nationwide-ins-2019-ny-slip-op-52038u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52038(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests Fee schedule
Legal questions: Proof of mailing · Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Blackman v Nationwide Ins., 2019 NY Slip Op 52038(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

Disputes over receipt of verification and the fee schedule barred summary judgment for either party. The insurer sought dismissal for failure to supply verification within 120 days under 11 NYCRR 65-3.5 (o) and for excessive charges. Its proof established timely verification requests and nonreceipt, but the provider's affidavit raised a presumption that verification had been mailed and received. The fee schedule defense also presented a factual dispute. Because the services were rendered in 2015, the insurer need not establish preservation of that defense under 11 NYCRR 65-3.8 (g) (1) (ii) and 11 NYCRR 65-3.8 (g) (2). The Appellate Term, Second Department, reversed the provider's judgment and denied its cross motion; denial of the insurer's motion remained undisturbed.

Reported in New York Official Reports at Blackman v Nationwide Ins. (2019 NY Slip Op 52038(U))

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

Noel E. Blackman, M.D., as Assignee of McDonald-Charles, Elizabeth, Respondent,
against
Nationwide Ins., Appellant.

Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 8, 2017, deemed from a judgment of that court entered January 22, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 8, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,281.09.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that it had timely denied the claims at issue on the ground that plaintiff had failed to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]), and that the amounts plaintiff sought to recover exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Defendant’s appeal from an order of the Civil Court entered December 8, 2017 denying defendant’s motion and granting plaintiff’s cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $3,281.09 which was entered on January 22, 2018 pursuant to the order (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, the affidavit submitted by plaintiff 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 Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification. Moreover, we find that, on this record, there is also a triable issue of fact as to defendant’s fee schedule defense, which defense, contrary to the finding of the Civil Court, defendant was not required to establish that it had preserved, as the services at issue were rendered in 2015 (see 11 NYCRR 65—3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: December 13, 2019

Legal questions (3)

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer proved timely mailing of its verification requests, but the provider's affidavit raised a presumption that the verification was mailed and received, leaving a factual question.

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, 99 (this one included) are in the same category.

Outstanding verification and premature actions

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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 provider supplied the requested verification, so the insurer's 120-day nonresponse denial could not support judgment either way.

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, 114 (this one included) are in the same category.

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held a triable issue of fact existed on the insurer's fee schedule defense, which needed no preservation for 2015 services, so the provider's summary judgment was vacated.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 85 (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.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.

Cited by

A label shows how the later decision treated this one.

Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U)) FollowedA timely verification request's toll does not give an insurer further opportunities to make otherwise untimely verification requests.

Similar decisions

Blackman v Hereford Ins. Co. (2019 NY Slip Op 51166(U))The provider's affidavit raised a triable issue as to whether requested verification had been mailed to and received by the insurer.
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.
New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))The provider failed to raise a triable issue that it supplied requested verification or reasonably justified noncompliance.
Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))The insurer proved IME nonappearances and timely denials for all but one claim, as to which receipt remained disputed.
Blackman v 21st Century Ins. Co. (2021 NY Slip Op 50771(U))The provider's claims were barred by res judicata based on a declaratory judgment of which the appellate court took judicial notice.