February 5, 2016

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-national-liab-fire-ins-co-2016-ny-slip-op50132u/

Court: Appellate Term, Second Department
Decided: February 5, 2016
Citation: 2016 NY Slip Op 50132(U) · 50 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co., 50 Misc 3d 137(A), 2016 NY Slip Op 50132(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 employee affidavit raised a triable issue over whether requested verification had been mailed to and received by the insurer. The insurer sought summary judgment dismissing the first, second, third, and fifth causes of action as premature. Its proof established timely mailing of initial and follow-up verification requests and prima facie nonreceipt of the responses, supporting prematurity under 11 NYCRR 65-3.8 (a). The provider's opposing affidavit, however, created a presumption of mailing and receipt of the requested verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the branches of the insurer's cross motion addressing those four causes of action.

Reported in New York Official Reports at Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))

[*1]

EMC Health Prods., Inc. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 50132(U) [50 Misc 3d 137(A)]

Decided on February 5, 2016

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 11, 2016; it will not be published in the printed Official Reports.

Decided on February 5, 2016

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

PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-267 K C

EMC Health Products, Inc. as Assignee of HORACE WALLACE, Respondent,
against
National Liability & Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered October 2, 2013. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action of the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, an order of the Civil Court, insofar as appealed from by defendant and as limited by its brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action on the ground that these causes of action are premature because plaintiff had failed to provide requested additional verification.

In support of its cross motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) with respect to the claims at issue in plaintiff’s first, second, third and fifth causes of action. Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first, second, third and fifth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the first, second, third and fifth causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: February 05, 2016

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.

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 requests for four claims, but the provider employee's affidavit raised a presumption that the verification was mailed and received, creating a triable issue.

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

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

Held a triable issue existed as to whether four causes of action were premature because the provider's affidavit raised a presumption that the requested verification was mailed and received.

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.

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.
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.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.

Similar decisions

EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51834(U))The provider's action was premature because requested verification remained outstanding when the action commenced.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))The provider's mailing affidavit raised a factual issue over whether its claims were premature for outstanding verification.
TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51506(U))The provider's owner's affidavit raised a factual issue over receipt of requested verification and whether the action was premature.
EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))A provider's prima facie case does not require proof that supplies were actually delivered to the assignor or identification of who delivered them.
New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 51632(U))The provider raised factual issues over verification receipt on four causes of action, but the insurer proved nonappearance on the fourth claim.