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September 27, 2016

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))

https://www.beynensonlaw.com/case-law/island-life-chiropractic-p-c-v-travelers-ins-co-2016-ny-slip-op51413u/

Court
Appellate Term, Second Department
Decided
September 27, 2016
Citation
2016 NY Slip Op 51413(U) · 53 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Split result
Issues
Verification requests Timeliness and preclusion
Legal questions
Proof of mailing · Outstanding verification and premature actions (see the maps)
Cite as
Island Life Chiropractic, P.C. v Travelers Ins. Co., 53 Misc 3d 133(A), 2016 NY Slip Op 51413(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 mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature. The insurer's proof established presumptive mailing of initial and follow-up verification requests and nonreceipt of the requested material. The provider owner's affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. The conflicting proof raised a triable issue whether the action for assigned no-fault benefits was premature. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the denial of the provider's summary judgment motion intact.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))

[*1]
Island Life Chiropractic, P.C. v Travelers Ins. Co.
2016 NY Slip Op 51413(U) [53 Misc 3d 133(A)]
Decided on September 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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


PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-647 Q C
Island Life Chiropractic, P.C., as Assignee of GABRIEL LOWERS, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 27, 2014. 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that initial and follow-up verifications requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant 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, plaintiff submitted an affidavit from plaintiff’s owner, which, as plaintiff argues, 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 Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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: September 27, 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's proof raised a presumption that its verification requests were mailed, but the provider owner's affidavit raised a presumption that the verification was mailed and received, leaving a triable issue.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,203
  • Trial courtsTrial 143
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 5 decisions (5 Insurer proved mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 80 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 73 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 9 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 102 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 20 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 67 decisions (55 Insurer proved mailing, 3 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 109 decisions (87 Insurer proved mailing, 13 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 77 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 27 decisions (12 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 74 decisions (6 Insurer proved mailing, 18 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 3 decisions (3 Insurer proved mailing)2026, Appellate Term: 7 decisions (2 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 17 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 4 decisions (2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 14 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 1 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
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 prematurity because the provider's affidavit raised a presumption that the requested verification was mailed and received, countering the insurer's showing of non-receipt.

  • Appellate DivisionApp Div 30
  • Appellate TermApp Term 276
  • Trial courtsTrial 68
2014, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2013, Appellate Division: 2 decisions (2 Insurer's showing fails)2011, Appellate Division: 5 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2009, Appellate Division: 1 decision (1 Premature: verification outstanding)2008, Appellate Division: 2 decisions (2 Triable issue)2007, Appellate Division: 6 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails, 1 Provider complied)2006, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2005, Appellate Division: 4 decisions (2 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2004, Appellate Division: 5 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)2026, Appellate Division: 1 decision (1 Nonresponse denial upheld)2023, Appellate Term: 2 decisions (2 Nonresponse denial upheld)2022, Appellate Term: 14 decisions (6 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Triable issue, 3 Insurer's showing fails)2021, Appellate Term: 4 decisions (3 Premature: verification outstanding, 1 Triable issue)2020, Appellate Term: 5 decisions (1 Premature: verification outstanding, 3 Triable issue, 1 Insurer's showing fails)2019, Appellate Term: 25 decisions (11 Premature: verification outstanding, 3 Nonresponse denial upheld, 10 Triable issue, 1 Insurer's showing fails)2018, Appellate Term: 9 decisions (2 Premature: verification outstanding, 7 Triable issue)2017, Appellate Term: 38 decisions (13 Premature: verification outstanding, 22 Triable issue, 3 Insurer's showing fails)2016, Appellate Term: 39 decisions (9 Premature: verification outstanding, 26 Triable issue, 4 Insurer's showing fails)2015, Appellate Term: 21 decisions (9 Premature: verification outstanding, 11 Triable issue, 1 Insurer's showing fails)2014, Appellate Term: 16 decisions (10 Premature: verification outstanding, 6 Triable issue)2013, Appellate Term: 11 decisions (9 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails)2012, Appellate Term: 12 decisions (10 Premature: verification outstanding, 2 Triable issue)2011, Appellate Term: 7 decisions (7 Premature: verification outstanding)2010, Appellate Term: 15 decisions (13 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2009, Appellate Term: 9 decisions (4 Premature: verification outstanding, 5 Insurer's showing fails)2008, Appellate Term: 12 decisions (2 Premature: verification outstanding, 10 Insurer's showing fails)2007, Appellate Term: 6 decisions (4 Premature: verification outstanding, 2 Insurer's showing fails)2006, Appellate Term: 7 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails)2005, Appellate Term: 8 decisions (1 Triable issue, 6 Insurer's showing fails, 1 Provider complied)2004, Appellate Term: 3 decisions (1 Premature: verification outstanding, 2 Insurer's showing fails)2003, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2024, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2025, Appellate Term: 8 decisions (1 Premature: verification outstanding, 7 Nonresponse denial upheld)2026, Appellate Term: 1 decision (1 Insurer's showing fails)2023, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2022, Trial courts: 1 decision (1 Premature: verification outstanding)2021, Trial courts: 5 decisions (1 Nonresponse denial upheld, 2 Triable issue, 2 Insurer's showing fails)2020, Trial courts: 2 decisions (2 Insurer's showing fails)2018, Trial courts: 1 decision (1 Insurer's showing fails)2017, Trial courts: 6 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Insurer's showing fails)2014, Trial courts: 1 decision (1 Insurer's showing fails)2013, Trial courts: 1 decision (1 Triable issue)2012, Trial courts: 7 decisions (2 Premature: verification outstanding, 2 Triable issue, 2 Insurer's showing fails, 1 Provider complied)2011, Trial courts: 2 decisions (2 Insurer's showing fails)2010, Trial courts: 3 decisions (2 Premature: verification outstanding, 1 Insurer's showing fails)2009, Trial courts: 5 decisions (3 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2008, Trial courts: 8 decisions (5 Premature: verification outstanding, 1 Triable issue, 2 Insurer's showing fails)2007, Trial courts: 1 decision (1 Insurer's showing fails)2006, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2005, Trial courts: 8 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails, 1 Provider complied)2004, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Provider complied)2024, Trial courts: 1 decision (1 Nonresponse denial upheld)2025, Trial courts: 4 decisions (2 Nonresponse denial upheld, 2 Triable issue)2026, Trial courts: 6 decisions (1 Premature: verification outstanding, 2 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)This decision
20052010201520202025
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.
  • Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.

Similar decisions

  • 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.
  • Island Life Chiropractic, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51541(U))The insurer's cross motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal.
  • 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.
  • Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U))The insurer established the assignor's failure to attend both scheduled EUOs and timely denials based on that nonappearance.
  • Island Life Chiropractic, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51824(U))The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless.
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