August 12, 2010

Eagle Surgical Supply, Inc. v Travelers Indem. Co. (2010 NY Slip Op 51456(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-travelers-indem-co-2010-ny-slip-op-51456u/

Court: Appellate Term, Second Department
Decided: August 12, 2010
Citation: 2010 NY Slip Op 51456(U) · 28 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Eagle Surgical Supply, Inc. v Travelers Indem. Co., 28 Misc 3d 137(A), 2010 NY Slip Op 51456(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 failed to establish that the provider had not supplied requested verification, defeating its summary judgment motion. Although the insurer proved timely verification requests under 11 NYCRR 65-3.5 (b), its litigation examiner did not allege that the verification remained outstanding. Its attorney's assertion of nonreceipt lacked a demonstrated basis in personal knowledge. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion. A separate concurrence agreed with the findings and emphasized the absence of a statement by someone with personal knowledge that the requests remained unsatisfied.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Travelers Indem. Co. (2010 NY Slip Op 51456(U))

[*1]

Eagle Surgical Supply, Inc. v Travelers Indem. Co.

2010 NY Slip Op 51456(U) [28 Misc 3d 137(A)]

Decided on August 12, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1179 K C. NO. 2009-1179 K C

Eagle Surgical Supply, Inc. as Assignee of TREVOR ANTHONY CHRISTIE, Appellant,

against

Travelers Indemnity Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 2, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s 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 on the ground that plaintiff had failed to provide requested verification. Plaintiff opposed the motion. The Civil Court granted defendant’s motion, and this appeal ensued.

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant’s litigation examiner did not even allege that the requested verification was outstanding, and defendant’s attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant’s non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS [*2]
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAGLE SURGICAL SUPPLY, INC.
as Assignee of TREVOR ANTHONY CHRISTIE,

Appellant,

-against-
TRAVELERS INDEMNITY COMPANY,

Respondent.

Golia, J., concurs in the following memorandum:

While I concur with the findings as well as the recitation of facts set forth in the majority opinion, I take note of the papers submitted by defendant in support of its motion for summary judgment.

Defendant submitted what is easily the most extensive and detailed affidavit to establish proper and timely mailing of the requests for verification. Having done so, defendant then failed to address by someone with personal knowledge that the verification requests remain unsatisfied.
Decision Date: August 12, 2010

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: Defense rejected because the insurer's requests or proof were deficient

Denied the insurer summary judgment because no one with personal knowledge stated that the requested verification remained outstanding; the examiner did not allege it and counsel lacked personal knowledge of non-receipt.

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

Of the 367 decisions on this question in the Second Department courts and the Court of Appeals, 77 (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 insurer demonstrated that it timely mailed its verification requests, but the defense failed on another element because no one with personal knowledge showed the verification remained outstanding.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.

Cited in this decision

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

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.
V.S. Medical Services, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 51473(U)) FollowedThe insurer failed to prove the provider's noncompliance with a deposition order through an affidavit based on personal knowledge.

Similar decisions

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50950(U))The insurer's affidavits and documents established timely mailing of its denial, and the provider waived its objection under CPLR 2309 (c).
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51538(U))The insurer's IME report established lack of medical necessity for one supply claim, but its peer review did not establish that defense for another.
Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))The provider's owner's affidavit raised a factual issue about receipt of verification and whether the action was premature.
Treka Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51411(U))The insurer established nonreceipt of one claim and outstanding verification for five others.