June 6, 2016
Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50910(U))
https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-hereford-ins-co-2016-ny-slip-op50910u/
- Decided
- June 6, 2016
- Citation
- 2016 NY Slip Op 50910(U) · 52 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Issues
- Verification requests
- Legal questions
- Proof of mailing · Outstanding verification and premature actions (see the maps)
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.
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50910(U))
| Great Health Care Chiropractic, P.C. v Hereford Ins. Co. |
| 2016 NY Slip Op 50910(U) [52 Misc 3d 127(A)] |
| Decided on June 6, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1720 Q C
against
Hereford Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 1, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, by order entered July 1, 2013, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
In support of the 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]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see 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 owner, 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 this action is 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 is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 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.
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, but the provider owner's affidavit raised a presumption that the verification was mailed and received, creating a triable issue.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
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 prematurity because the provider's affidavit raised a presumption that the requested verification was mailed and received, despite the insurer's prima facie showing.
Of the 385 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
- Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))The provider's owner affidavit raised a triable issue about timely submission of the claim despite the insurer's evidence of nonreceipt.
- Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50927(U))The insurer's summary judgment cross motion asserting prematurity for failure to provide requested verification was denied on appeal.
- T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))The provider's proof of mailing requested verification raised a factual issue as to whether its action was premature.
- Island Chiropractic Testing, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51795(U))The provider's verification responses presented a factual dispute that precluded summary judgment for either party.
- Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2016 NY Slip Op 50308(U))The insurer failed to prove proper mailing of IME notices, and the provider failed to establish prima facie entitlement to summary judgment.