March 31, 2005

King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))

https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-allstate-ins-co-2005-nyslipop-50451u/

Court: Appellate Term, Second Department
Decided: March 31, 2005
Citation: 2005 NY Slip Op 50451(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions · Claimant's prima facie case on motions (see the maps)

Cite as

King's Med. Supply Inc. v Allstate Ins. Co., 2005 NY Slip Op 50451(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2005)

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 insurer's failure to send a timely follow-up verification request ended the toll and precluded its verification defense. The provider established submission of claims and overdue payment under Insurance Law § 5106 (a). One claim was not paid or denied within 30 days, precluding the insurer's defenses. For the remaining claims, the insurer requested initial narrative reports but failed to follow up timely under 11 NYCRR 65.15 (d) (2). Its denials for missing verification were premature because it had not exhausted the verification procedures. The lapsed toll also precluded defenses first raised in opposition to summary judgment. The Appellate Term, Second Department, reversed, granted the provider's summary judgment motion, and remanded for statutory interest and attorney's fees.

Reported in New York Official Reports at King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))

[*1]

King’s Med. Supply Inc. v Allstate Ins. Co.

2005 NYSlipOp 50451(U)

Decided on March 31, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-467 N C

KING’S MEDICAL SUPPLY INC. a/a/o ALEKSEY TSVETKOV ALEXANDR KORSUNSKY GENNADIY TENENBAUM, Appellant,
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered February 17, 2004, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits for medical supplies furnished its assignors, plaintiff established prima facie entitlement to summary judgment by proof that it submitted claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Defendant’s failure to pay or deny the Tsvetkov claim within the prescribed 30-day period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) precludes defendant from interposing defenses to that claim with exceptions herein inapplicable (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and summary judgment should have been granted as to said claim.

Defendant denied the remaining claims on the sole ground that plaintiff failed to produce [*2]the “initial narrative report[s] from the preparing physician” pursuant to a timely initial verification request (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). However, while an insurer need not pay or deny a claim until all requested verification is received (11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]), the insurance regulations also impose on the insurer, when an initial verification request is not honored within 30 days, the duty to follow up with a second request within 10 days (now 15 days) (11 NYCRR 65.15 [d] [2], now 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). Any attempt by the insurer to deny the claim prior to exhausting the verification protocols is premature and of no effect (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; King’s Med. Supply v New York Cent. Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]). Since the tolling of the 30-day claim determination period, which occurred upon defendant’s initial verification request (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), lapsed in the absence of a timely follow-up request, defendant must be deemed to have failed to pay or deny the claims within the statutory time, precluding the defense based
on the failure to produce requested verification, as well as the additional defenses interposed for the first time in opposition to the summary judgment motion (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter remanded to the court below for a calculation of statutory interest and an assessment of
attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 31, 2005

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

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Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Defense rejected because the insurer's requests or proof were deficient

Rejected denials for failure to provide requested narrative reports because the insurer sent no timely follow-up request, so the toll lapsed and the premature denials were of no effect.

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, 78 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the supplier established its prima facie case by proof that it submitted claim forms setting forth the fact and amount of loss and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Damadian Mri In Elmhurst v Liberty Mut. Ins. Co. (2003 NY Slip Op 51700(U))A provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense.
New York & Presbyt. Hosp. v Progressive Cas. Ins. Co. (2004 NY Slip Op 01750)The insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both.
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51550(U))An assignor's failure to attend a single IME does not support denial when the insurer has not exhausted follow-up verification procedures.
Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 07663) FollowedA timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires.

Cited by

A label shows how the later decision treated this one.

A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456) FollowedThe providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51745(U)) FollowedThe insurer's untimely examination requests failed to toll its denial deadline, and its staged-accident defense lacked admissible proof.
Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NY Slip Op 51747(U)) FollowedThe insurer's untimely EUO request did not toll its denial deadline, and its staged-accident defense lacked admissible proof.

Similar decisions

King’S Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50280(U))The provider obtained partial summary judgment on claims denied after 30 days, but disputed equipment costs barred judgment on timely denied claims.
King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50450(U))The insurer's failure to follow up a missed post-claim IME invalidated its denial based on nonappearance.
King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))Failure to attend an IME scheduled before the insurer receives the provider's claim is not a proper basis for denying no-fault benefits.
Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.