February 7, 2005

Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co. (2005 NY Slip Op 50134(U))

https://www.beynensonlaw.com/case-law/edison-med-servs-p-c-v-lumbermans-mut-cas-co-2005-ny-slip-op-50134u/

Court: Appellate Term, First Department
Decided: February 7, 2005
Citation: 2005 NY Slip Op 50134(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co., 2005 NY Slip Op 50134(U) (App Term, 1st Dept 2005)

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's verification requests presented triable issues as to compliance with the required timetable and procedures. The Appellate Term, First Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed, leaving intact denial of the insurer's CPLR 3211 (a) (7) motion to dismiss. The record did not resolve whether initial and follow-up requests complied with 11 NYCRR 65.15 (d) (1) and (e) (2). Following Presbyterian Hosp. v Aetna Cas. & Sur. Co., the court explained that an ultimate finding of untimely verification requests would allow the 30-day payment-or-denial period to run even before verification was obtained, rather than merely shorten it.

Reported in New York Official Reports at Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co. (2005 NY Slip Op 50134(U))

[*1]

Edison Med. Servs., P.C. v Lumbermans Mut. Cas. Co.

2005 NY Slip Op 50134(U)

Decided on February 7, 2005

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570078/04

Edison Medical Services, P.C., Assignee of SULAY LAMOUTH, JOEL ALVAREZ AND MARIA MEXBIZER, Plaintiff-Respondent,

against

Lumbermans Mutual Casualty Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County, entered October 6, 2003 (Robert A. Sackett, J.) which denied its CPLR 3211(a)(7) motion to dismiss the complaint for failure to state a cause of action and granted plaintiff’s cross motion for summary judgment in the principal sum of $8,306.70.

PER CURIAM:

Order dated October 6, 2003 (Robert A. Sackett, J.) modified to deny plaintiff’s cross motion for summary judgment; as modified, order affirmed, without costs.

The action, seeking recovery of motor vehicle no-fault benefits, is not ripe for summary disposition. The existing record raises triable issues as to whether the defendant insurer’s initial and follow-up requests for verification were timely and properly made in [*2]accordance with the timetable and procedures for verification set out in the governing Insurance Law regulations (see 11 NYCRR 65.15[d][1], [e][2], now renumbered 11 NYCRR 65-3.5[a], [c], 65-3.6[b]). Contrary to defendant’s argument, the legal consequence of an ultimate trial determination that it did not timely request verification would not be the mere “shorten[ing]” of the 30-day period for payment or denial of the claim, but the running of the prescribed time period altogether, “‘even before verification [was] obtained’, due to the carrier’s ‘lack of diligence in obtaining the verification’ (citations omitted).” (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996], lv denied 90 NY2d 802 [1997].)
This constitutes the decision and order of the court.
Decision Date: February 07, 2005

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: Fact issues remain on whether the verification defense applies

Denied the provider summary judgment because the record raised triable issues whether the insurer's initial and follow-up verification requests were timely and properly made under the regulatory timetable.

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

Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 4 (this one included) are in the same category.

Similar decisions

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.
A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))An EUO request does not toll the 30-day payment-or-denial period under the no-fault regulation governing services rendered in 2001.
Comprehensive Mental v Lumbermens Mut. Ins. Co. (2004 NY Slip Op 50745(U))The provider failed to prove timely mailing of the earlier service claim, while the insurer's receipt established timeliness of the later claim.
PDG Psychological, P.C. v Lumbermans Mut. Cas. Co. (2007 NY Slip Op 51343(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51634(U))An insurer need not pay or deny a no-fault claim until it receives the requested verification.