March 17, 2015

Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50401(U))

https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-praetorian-ins-co-2015-ny-slip-op50401u/

Court: Appellate Term, Second Department
Decided: March 17, 2015
Citation: 2015 NY Slip Op 50401(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50401(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 proved its first claim, while its verification-mailing affidavit raised a factual issue on whether the second claim was premature. The owner's affidavit established prima facie entitlement on the first cause of action under Insurance Law § 5106 (a); the insurer's mere denial of receipt did not rebut the mailing presumption. For the second cause, the insurer established timely verification requests and nonreceipt, implicating 11 NYCRR 65-3.8 (a). The provider's employee affidavit created a presumption of mailing and receipt of the requested verification, leaving a triable issue. The Appellate Term, Second Department, modified the order to grant the provider summary judgment only on the first cause and deny the insurer's cross motion entirely.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50401(U))

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

Longevity Medical Supply, Inc. as Assignee of STANLEY CHANOINE, Appellant,
against
Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. 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 the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s first cause of action is granted and 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

The affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment upon its first cause of action (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “[D]efendant’s mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing” (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff’s first cause of action.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (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 prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is 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 one of plaintiff’s employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (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 cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s first cause of action is granted and defendant’s cross [*2]motion for summary judgment dismissing the complaint is denied.

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

Decision Date: March 17, 2015

Legal questions (3)

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.

Claimant's prima facie case on motions

Open the full map

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

Held the provider's owner's affidavit sufficient to establish prima facie entitlement to summary judgment on the first cause of action, and the insurer's mere denial of receipt did not raise a triable issue.

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.

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: Different mailing results for different documents or claims in one decision

Held the provider's proof of mailing its claim was not rebutted by a mere denial of receipt, while on another claim its affidavit of mailing verification only raised a fact issue against the insurer's non-receipt proof.

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

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: Fact issues remain on whether the verification defense applies

Held that the insurer proved mailing of verification requests and non-receipt, but the provider's employee affidavit raised a presumption the verification was mailed and received, creating a triable issue on prematurity.

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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U)) FollowedThe insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others.
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.
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

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.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51699(U))The provider raised a verification dispute on one claim, but the insurer proved IME and EUO nonappearance on five others.
Active Care Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))The provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied.
Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51433(U))The provider's mailing affidavit raised a triable issue whether requested verification had been received for two claims.
Longevity Med. Supply, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50757(U))The provider failed to eliminate a factual issue about whether it had served responses to the insurer's verification requests.