December 16, 2011

Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))

https://www.beynensonlaw.com/case-law/psychology-ym-p-c-v-progressive-northeastern-ins-co-2011-ny-slip-op52275u/

Court: Appellate Term, Second Department
Decided: December 16, 2011
Citation: 2011 NY Slip Op 52275(U) · 34 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Psychology YM, P.C. v Progressive Northeastern Ins. Co., 34 Misc 3d 126(A), 2011 NY Slip Op 52275(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 action was premature because timely mailed verification requests remained unanswered when the action began. The insurer moved for summary judgment dismissing the assigned no-fault claims, and the provider cross-moved for summary judgment. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests under standard office practices and procedures. Because the provider had not responded before commencing suit, the insurer's time to pay or deny had not elapsed under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the action as premature and denying the provider's cross motion.

Reported in New York Official Reports at Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))

[*1]

Psychology YM, P.C. v Progressive Northeastern Ins. Co.

2011 NY Slip Op 52275(U) [34 Misc 3d 126(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-426 K C.

Psychology YM, P.C. as Assignee of RILEY EVERTON and NICOLA SMITH, Appellant,
against
Progressive Northeastern Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. 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, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint as premature, based upon outstanding verification requests, and denied plaintiff’s cross motion for summary judgment.

The affidavit of defendant’s litigation representative submitted in support of defendant’s motion for summary judgment was sufficient to establish that defendant had timely mailed requests and follow-up requests for verification in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not respond to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the action as premature was properly granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011

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.

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: Timely requests went unanswered; the claim is not overdue and the action is premature

Upheld dismissal as premature because the insurer timely mailed verification requests and follow-ups that the provider did not answer before suit, so the time to pay or deny had not elapsed.

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, 151 (this one included) are in the same category.

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 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 litigation representative's affidavit sufficient to establish timely mailing of verification requests and follow-ups under the insurer's standard office practices and procedures.

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, 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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U)) FollowedThe provider's action was premature because it began before responses to timely verification requests were served.

Similar decisions

Psychology YME, P.C. v Travelers Ins. (2019 NY Slip Op 51798(U))The insurer proved its verification defense based on the provider's failure to supply requested verification within 120 days.
Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U))The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.
Island Chiropractic Testing, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51795(U))The provider's verification responses presented a factual dispute that precluded summary judgment for either party.
Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))The insurer failed to prove timely mailing of verification requests and therefore failed to establish a toll of the claim determination period.
Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))The insurer's verification requests were timely, but a factual issue remained as to whether the provider adequately responded.