February 24, 2023
New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))
https://www.beynensonlaw.com/case-law/new-york-manual-p-t-p-c-v-nationwide-affinity-ins-co-of-am-2023-nyslip-op-50281u/
- Decided
- February 24, 2023
- Citation
- 2023 NY Slip Op 50281(U) · 78 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- Verification requests
- Legal questions
- Outstanding verification and premature actions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))
| New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. |
| 2023 NY Slip Op 50281(U) [78 Misc 3d 128(A)] |
| Decided on February 24, 2023 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, MARINA CORA MUNDY, JJ
2022-688 K C
against
Nationwide Affinity Insurance Company of America, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
The Law Office of Kevin J. Philbin (Lawrence Wolkow of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered September 15, 2020. 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 affirmed, with $25 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 on the ground that plaintiff failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.
Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received all of the requested verification. In opposition, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” Thus, contrary to plaintiff’s contentions on appeal, [*2]plaintiff failed to establish a triable issue of fact by demonstrating that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: February 24, 2023
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Insurer properly denied the claim because verification was not provided (120-day rule)
Upheld dismissal because the insurer timely requested verification and did not receive it, and the provider's statement that it mailed responses 'to the extent proper' was neither compliance nor reasonable justification under the 120-day rule.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 22 (this one included) are in the same category.
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 insurer showed prima facie that it timely mailed its initial and follow-up verification requests.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50623(U))The provider's qualified assertion of mailing verification failed to show compliance or a reasonable justification for noncompliance.
- CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co. (2019 NY Slip Op 50576(U))A provider's opinion that requested invoices are unnecessary does not reasonably justify failing to supply verification.
Similar decisions
- Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U))An insurer need not prove that its first EUO scheduling letter was sent within 15 days of receiving an NF-2 or another provider's claim.
- MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
- JPF Med. Servs., P.C. v Nationwide Ins. (2020 NY Slip Op 51122(U))The insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation.
- Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))The insurer established timely EUO notices, the provider's nonappearances and timely denials, and the provider failed to rebut that showing.