January 13, 2012

Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))

https://www.beynensonlaw.com/case-law/jesa-med-supply-inc-v-american-tr-ins-co-2012-ny-slip-op-50052u/

Court: Appellate Term, Second Department
Decided: January 13, 2012
Citation: 2012 NY Slip Op 50052(U) · 34 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Jesa Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 140(A), 2012 NY Slip Op 50052(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 and the insurer's time to pay or deny had not begun. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests through standard office practices and procedures. The insurer demonstrated nonreceipt, and the provider did not show that it supplied the verification before commencing suit. Under 11 NYCRR 65-3.8 (a), the 30-day payment or denial period therefore had not begun. Deeming the appeal to be from the judgment under CPLR 5512 (a), the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))

[*1]

Jesa Med. Supply, Inc. v American Tr. Ins. Co.

2012 NY Slip Op 50052(U) [34 Misc 3d 140(A)]

Decided on January 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2161 K C.

Jesa Medical Supply, Inc. as Assignee of ROTIMI WILLIAMS, Respondent,
against
American Transit Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 30, 2010, deemed from a judgment of the same court entered July 22, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the June 30, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,177.63

ORDERED that the judgment is reversed, without costs, the order entered June 30, 2010 is vacated, plaintiff’s motion for summary judgment is denied 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, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. After judgment was entered, defendant appealed from the order. We deem defendant’s appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

The affidavit of defendant’s litigation representative established that defendant had timely [*2]mailed its request and follow-up request for verification in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [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.

Accordingly, the judgment is reversed, the order is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: January 13, 2012

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.

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 timely requested and followed up on verification, had not received it, and the provider did not show it was provided before suit.

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.

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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the litigation representative's affidavit established timely mailing of the verification request and follow-up under the insurer's standard office practices and procedures.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe 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)) FollowedThe provider's incomplete verification responses left the insurer's time to pay or deny untriggered and the action premature.

Similar decisions

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 51603(U))The insurer established that two claims were premature for outstanding verification and a third lacked medical necessity.
Jesa Med. Supply, Inc. v NYC Tr. Auth. (2013 NY Slip Op 52007(U))Denial forms offered only to identify the denials at issue, rather than prove the truth of their stated grounds, are not hearsay.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.
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.
Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co. (2017 NY Slip Op 50958(U))The provider's action was premature because requested verification remained outstanding when suit commenced.