December 22, 2017

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51857(U))

https://www.beynensonlaw.com/case-law/right-aid-med-supply-corp-v-state-farm-mut-auto-ins-co-2017-ny-slip-op51857u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51857(U) · 58 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 140(A), 2017 NY Slip Op 51857(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 mailing affidavit raised a triable issue as to whether its action was premature for failure to supply verification. The insurer moved for summary judgment dismissing the assigned no-fault claims and established timely mailing of its initial and follow-up verification requests and nonreceipt of the requested material. In opposition, the provider submitted an employee's affidavit sufficient to create a presumption that the verification had been mailed to and received by the insurer. That competing proof raised a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.

Reported in New York Official Reports at Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51857(U))

[*1]

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51857(U) [58 Misc 3d 140(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-354 K C

Right Aid Medical Supply Corp., as Assignee of Reyes, Jonnathan, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Richard T. Lau & Associates, (Martin Dolitsky, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 12, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint 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 the action was premature because plaintiff had failed to provide requested verification. By order entered November 12, 2014, the Civil Court granted defendant’s motion.

In support of its motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 [*2]AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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 established timely mailing of its verification requests, but the provider employee'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 a triable issue existed as to prematurity because, although the insurer proved timely requests and nonreceipt, the provider employee's affidavit raised a presumption that verification was mailed and received.

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.

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.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.

Cited by

A label shows how the later decision treated this one.

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51273(U)) FollowedAn insurer asserting prematurity at trial must initially prove timely verification requests and nonreceipt of the requested verification.

Similar decisions

Right Aid Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51641(U))The provider's verification-mailing affidavit raised a triable issue whether its no-fault action was premature.
Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))The provider's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification.
Right Aid Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51714(U))The provider's affidavit raised a triable issue as to whether its action was premature for failure to supply requested verification.
T & S Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51453(U))The provider's affidavit raised a triable issue as to whether it had supplied the requested verification.
Medex Health Supply, Inc. v Travelers Ins. Co. (2017 NY Slip Op 51261(U))The provider's mailing affidavit raised a factual issue over verification receipt despite the insurer's prima facie showing of prematurity.