August 28, 2020

Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U))

https://www.beynensonlaw.com/case-law/solution-bridge-inc-v-nationwide-ins-2020-ny-slip-op-50988u/

Court: Appellate Term, Second Department
Decided: August 28, 2020
Citation: 2020 NY Slip Op 50988(U) · 68 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

Solution Bridge, Inc. v Nationwide Ins., 68 Misc 3d 130(A), 2020 NY Slip Op 50988(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 affidavit raised a factual issue over whether requested verification was mailed and received, defeating premature-action dismissal. The insurer sought summary judgment on EUO nonappearance and outstanding verification grounds, and the provider cross-moved for summary judgment. The Civil Court dismissed the action as premature and denied the cross motion. Although the insurer showed timely initial and follow-up verification requests and nonreceipt, the provider's affidavit created a presumption of mailing and receipt of the responses. The competing proof left a triable issue concerning prematurity. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.

Reported in New York Official Reports at Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U))

[*1]

Solution Bridge, Inc. v Nationwide Ins.

2020 NY Slip Op 50988(U) [68 Misc 3d 130(A)]

Decided on August 28, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-837 K C

Solution Bridge, Inc., as Assignee of Castro, Shantel, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 23, 2018. 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 modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff had failed to appear for examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered January 23, 2018, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification and denied plaintiff’s cross motion.

Defendant demonstrated, prima facie, 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 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 id.). 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]). Plaintiff’s remaining contention lacks merit (see Frankel v Stavsky, 40 AD3d 918 [2007]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020

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 its verification response was mailed and received, leaving a triable issue against the insurer's nonreceipt showing.

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, 99 (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's affidavit raised a presumption that the requested 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 374 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.
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

Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51784(U))The provider's mailing proof raised factual disputes over timely claim submission and receipt of requested verification.
Solution Bridge, Inc. v GEICO Ins. Co. (2021 NY Slip Op 50731(U))The provider's action was barred by res judicata because recovery would impair rights established in a declaratory judgment action.
Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
New York Manual, P.T., P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50281(U))The provider failed to raise a triable issue that it supplied requested verification or reasonably justified noncompliance.
Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))An insurer need not state objective reasons for requesting EUOs as part of its prima facie showing for summary judgment based on nonappearance.