September 22, 2017

Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U))

https://www.beynensonlaw.com/case-law/medex-health-supply-inc-v-travelers-ins-co-2017-ny-slip-op-51261u/

Court: Appellate Term, Second Department
Decided: September 22, 2017
Citation: 2017 NY Slip Op 51261(U) · 57 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Medex Health Supply, Inc. v Travelers Ins. Co., 57 Misc 3d 135(A), 2017 NY Slip Op 51261(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 over verification receipt despite the insurer's prima facie showing of prematurity. The insurer established proper mailing of its initial and follow-up verification requests and nonreceipt of the requested verification. The provider's opposing affidavit, however, created a presumption that it had mailed the verification and that the insurer had received it. The competing submissions left a triable issue as to whether the assigned no-fault action was premature. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion to dismiss the complaint.

Reported in New York Official Reports at Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U))

[*1]

Medex Health Supply, Inc. v Travelers Ins. Co.

2017 NY Slip Op 51261(U) [57 Misc 3d 135(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2105 Q C

Medex Health Supply, Inc., as Assignee of Whitfield, Cheana, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Aloy O. Ibuzor (Marcy Miller-Melchiona, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 5, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that it had properly mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v [*2]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 reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017

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 proved proper mailing of its verification requests, but the provider's affidavit raised a presumption that the verification was mailed and received, leaving a factual issue.

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, 103 (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 that although the insurer showed proper requests and non-receipt, the provider's affidavit presuming mailing of the verification raised a triable issue whether the action was premature.

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, 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

TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))The provider's affidavit raised a triable issue as to verification receipt and defeated the insurer's prematurity motion.
T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))The provider's owner's affidavit raised a factual issue about receipt of verification and whether the action was premature.
TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51248(U))The provider's affidavit created a presumption of verification receipt and raised a triable issue concerning prematurity.
T & S Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51453(U))The provider's affidavit raised a triable issue as to whether it had supplied the requested verification.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50917(U))The provider's mailing affidavit raised a factual issue over receipt of verification, defeating the insurer's premature-action defense on summary judgment.