November 13, 2015

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51678(U))

https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-state-farm-mut-auto-ins-co-2015-ny-slipop-51678u/

Court: Appellate Term, Second Department
Decided: November 13, 2015
Citation: 2015 NY Slip Op 51678(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Verification requests
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51678(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 insurer's alleged illegibility excuse did not justify inaction on a claim whose assignor's name and claim number were legible. The insurer acknowledged receipt and already had another claim involving the same assignor and claim number. Its failure timely to deny, request verification or explain inability to process warranted summary judgment for the provider on the first cause of action under 11 NYCRR 65-3.8. On the second cause, the provider employee's affidavit created a presumption of mailing and receipt of requested verification, raising a factual issue of prematurity under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, modified the order to deny the insurer's motion in its entirety and grant the provider's cross motion on the first cause, otherwise affirming denial of the cross motion on the second.

Reported in New York Official Reports at New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51678(U))

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

New Way Medical Supply Corp. as Assignee of CYNTHIA DOR GREENIDGE, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted; 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also 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 plaintiff’s employee, which affidavit 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 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]).

Defendant conceded in its moving papers that, on December 13, 2010, it had received the claim form underlying the first cause of action. To the extent defendant asserts that it took no action because the claim form was illegible, upon our review of the document, we find that the name of plaintiff’s assignor and the claim number are legible. Moreover, defendant had, at a minimum, previously received the claim underlying the second cause of action, which involves the same assignor and same claim number. Consequently, the claim form’s alleged illegibility does not constitute a valid ground for defendant’s inaction. As the record establishes that defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim, plaintiff was entitled to summary judgment upon the first cause of action (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

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

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

Decision Date: November 13, 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 entitled to summary judgment on one claim because the insurer conceded receipt and failed to timely deny, seek verification or explain its inaction, the claimed illegibility being unfounded.

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

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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 timely mailing of its verification and follow-up requests, but the provider's employee affidavit raised a presumption that the requested verification was mailed and received, creating a fact 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 1,384 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

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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 a triable issue existed whether the second cause of action was premature because the provider's affidavit raised a presumption that it mailed the requested verification.

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.
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.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.

Cited by

A label shows how the later decision treated this one.

Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033) FollowedAn insurer's global denial does not excuse regulatory requirements to submit a claim form or its substantial equivalent.

Similar decisions

New Way Med. Supply Corp. v National Liab. & Fire Ins. Co. (2015 NY Slip Op 50783(U))A no-fault action is premature when the provider has failed to respond to a request for verification.
JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))The provider's affidavit raised a factual issue over receipt of requested verification and whether the second cause of action was premature.
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.
Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 51262(U))The insurer's proof established timely denials, resolving the sole remaining issue on its IME nonappearance defense.
Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51857(U))The provider's mailing affidavit raised a triable issue as to whether its action was premature for failure to supply verification.