July 21, 2017

Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co. (2017 NY Slip Op 50958(U))

https://www.beynensonlaw.com/case-law/daily-med-equip-distrib-ctr-inc-v-interboro-ins-co-2017-ny-slip-op50958u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50958(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co., 2017 NY Slip Op 50958(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 provider's action was premature because requested verification remained outstanding when suit commenced. The insurer established nonreceipt, and the provider did not show that it supplied the verification before commencement. Under 11 NYCRR 65-3.5 (c) and 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny therefore had not begun. The Civil Court had limited the remaining trial issue to receipt of verification, and the provider did not challenge its finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co. (2017 NY Slip Op 50958(U))

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

Daily Medical Equipment Distribution Center, Inc., as Assignee of Estrada, Eva, Respondent,
against
Interboro Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 15, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because defendant had timely and properly requested verification and the verification had not been provided to defendant. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that the only remaining issue for trial was whether defendant had received the verification it had requested.

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 to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims 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]; 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, thus, plaintiff’s action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and [*2]defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017

Legal questions

A question 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 showed it timely requested verification and never received it, and the provider did not show it was provided before suit, so the 30-day period never began to run.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Cited in this decision

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

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

A label shows how the later decision treated this one.

American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U)) FollowedA provider's substantial compliance with reasonable additional verification requests does not make its claims payable.

Similar decisions

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. (2016 NY Slip Op 51443(U))The insurer failed to establish mailing of verification requests for two claims and entitlement to dismissal of a third claim.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.
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.
Daily Med. Equip. Distrib. Ctr., Inc. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50929(U))The insurer's summary judgment motion asserting that the action was premature for failure to supply requested verification was denied on appeal.
Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient.