November 30, 2018

Pavlova v Travelers Ins. Co. (2018 NY Slip Op 51778(U))

https://www.beynensonlaw.com/case-law/pavlova-v-travelers-ins-co-2018-ny-slip-op-51778u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51778(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Pavlova v Travelers Ins. Co., 2018 NY Slip Op 51778(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 verification-mailing affidavit raised a factual issue as to whether its no-fault action was premature. The insurer showed that it timely mailed initial and follow-up verification requests and had not received the requested material. The provider's opposing affidavit, however, supported a presumption that the verification was mailed to and received by the insurer. That conflict precluded summary judgment for either party. Treating the appeal as one from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion, and denied that cross motion; the denial of the insurer's motion remained in place.

Reported in New York Official Reports at Pavlova v Travelers Ins. Co. (2018 NY Slip Op 51778(U))

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

Ksenia Pavlova, D.O., as Assignee of Jan Cedana, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 16, 2015, deemed from a judgment of that court entered February 4, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 16, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,192.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 16, 2015 as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant’s appeal from an order of the Civil Court entered November 16, 2015 denying defendant’s motion and granting plaintiff’s cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $3,192.79 that was entered on February 4, 2016 pursuant to the order (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]), in that defendant had [*2]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 had not received the requested verification. However, as plaintiff 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 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 judgment is reversed, so much of the order entered November 16, 2015 as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

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 timely mailing of its verification requests, but the provider's affidavit raised a presumption that the verification was mailed and received, creating a triable 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 neither side entitled to judgment because the insurer showed timely requests and nonreceipt while the provider's affidavit raised a presumption that verification was mailed and received, leaving prematurity triable.

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.

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.
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.
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

Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial.
Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51634(U))The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed.
Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))The insurer failed to establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied.
Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))The insured's EUO testimony and affidavit established that the alleged injury did not arise from an insured incident.