October 28, 2013
Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))
https://www.beynensonlaw.com/case-law/pomona-med-diagnostic-p-c-v-praetorian-ins-co-2013-ny-slip-op51798u/
- Decided
- October 28, 2013
- Citation
- 2013 NY Slip Op 51798(U) · 41 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · Outstanding verification and premature actions (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 Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U))
| Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. |
| 2013 NY Slip Op 51798(U) [41 Misc 3d 133(A)] |
| Decided on October 28, 2013 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570194/13.
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered March 24, 2010, as denied its cross motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Nelida Malave-Gonzalez, J.), entered March 24, 2010, insofar as appealed from, reversed, with $10 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
In opposition to defendant-insurer’s prima facie showing that its verification letters were timely and properly mailed, plaintiff failed to raise a triable issue sufficient to withstand summary judgment dismissal of this first-party no-fault action. The affidavit of an employee of a third-party biller, who had no personal knowledge of the date the purported “verification compliance” letter was mailed to defendant, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Accordingly, defendant is entitled to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the third-party biller's affidavit insufficient to show the provider mailed its verification compliance letter, because the affiant lacked personal knowledge of the mailing date and described office practice only generally.
Of the 161 decisions on this question in the First Department courts and the Court of Appeals, 9 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 action premature because the insurer showed its verification letters were timely mailed and the provider raised no triable issue that it responded.
Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 23 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024) FollowedThe insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms.
- St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00214) FollowedThe insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature.
Similar decisions
- Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U))The provider's action was premature because it had not answered timely mailed verification requests before commencing suit.
- Pomona Med. Diagnostics, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52131(U))Conflicting medical expert opinions raised a triable issue concerning the necessity of the provider's diagnostic tests.
- Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U))An insurer cannot deny a no-fault claim on the ground that another carrier is primarily liable.
- Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52059(U))The insurer's peer reviews established lack of medical necessity, and the claimed rebuttal letter was absent from the record.
- Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51634(U))Under 11 NYCRR 65-3.8 (b) (3), an insurer need not pay or deny a no-fault claim until it receives the requested verification.