December 17, 2014

EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51834(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-geico-ins-co-2014-ny-slip-op51834u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51834(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions (see the maps)

Cite as

EMC Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 51834(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 the action commenced. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the provider's favorable CPLR 3212 (g) findings, and granted the insurer's cross motion for summary judgment dismissing the complaint. Civil Court had treated the provider's response to verification requests as the sole remaining trial issue. The insurer demonstrated nonreceipt of the requested verification, and the provider did not show that it had supplied it before commencing suit. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny had not begun. The provider did not challenge the finding that the insurer was otherwise entitled to judgment.

Reported in New York Official Reports at EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51834(U))

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

EMC Health Products, Inc. as Assignee of WAPLE ALLEYNE, Respondent,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in favor of plaintiff are vacated, 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 plaintiff had not responded. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was whether plaintiff had responded to defendant’s verification requests.

As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such 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 65-3.8 [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, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014

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 never received the requested verification and the provider did not show it was furnished before suit, so the 30-day period never began.

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

Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484)An 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)The 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))The provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.

Similar decisions

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))The provider's employee affidavit raised a triable issue over whether requested verification had been mailed to and received by the insurer.
EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
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.
New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
Promed Durable Equip., Inc. v Geico Ins. (2014 NY Slip Op 50771(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.