July 12, 2019
Parisien v Travelers Ins. Co. (2019 NY Slip Op 51162(U))
https://www.beynensonlaw.com/case-law/parisien-v-travelers-ins-co-2019-ny-slip-op-51162u/
- Decided
- July 12, 2019
- Citation
- 2019 NY Slip Op 51162(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Parisien v Travelers Ins. Co. (2019 NY Slip Op 51162(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 15, 2017. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through tenth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the fifth, sixth, and eighth through tenth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first through tenth causes of action and granted the branches of defendant’s cross motion which sought summary judgment dismissing the fifth, sixth, and eighth through tenth causes of action on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification.
As to the fifth, sixth, and eighth through tenth causes of action, defendant demonstrated 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 the requested verification. Thus, contrary to plaintiff’s contention, defendant demonstrated, prima facie, that the fifth, sixth, and eighth through tenth causes of action are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).
As to the first through fourth and seventh causes of action, contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider failed its prima facie burden on the remaining claims because its proof did not show the claims were not timely denied or that the timely denials were conclusory, vague or without merit.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Held the causes of action premature because the insurer showed it timely mailed initial and follow-up verification requests and never received the requested verification.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (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 it timely mailed initial and follow-up verification requests, supporting dismissal of the related claims as premature.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- 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.
Similar decisions
- Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.
- Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U))The insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another.
- Parisien v Tri State Consumers Ins. Co. (2022 NY Slip Op 50920(U))The provider obtained summary judgment on a claim denied for missing therapy instructions because the insurer sought no verification.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))The provider's mailing affidavit raised a factual issue over whether its claims were premature for outstanding verification.
- Parisien v NY City Tr. Auth. (2018 NY Slip Op 51699(U))The self-insurer proved timely mailing of its denials, and the provider's remaining argument was unpreserved.