December 2, 2022

Spring Rehab, P.T., P.C. v Hereford Ins. Co. (2022 NY Slip Op 51270(U))

https://www.beynensonlaw.com/case-law/spring-rehab-p-t-p-c-v-hereford-ins-co-2022-ny-slip-op51270u/

Court: Appellate Term, Second Department
Decided: December 2, 2022
Citation: 2022 NY Slip Op 51270(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Outstanding verification and premature actions (see the maps)

Cite as

Spring Rehab, P.T., P.C. v Hereford Ins. Co., 2022 NY Slip Op 51270(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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 insurer's letters did not establish proper verification requests, and the provider also failed to establish entitlement to summary judgment. The Appellate Term, Second Department, modified the Civil Court, Kings County, order to deny the insurer's cross motion, while leaving denial of the provider's motion intact. The insurer claimed that the action was premature because verification remained outstanding. Its letters for the fourth cause of action were addressed to another provider; the remaining letters merely stated that documents were awaited without actually requesting verification from the plaintiff. The provider's proof did not establish that the claims were untimely denied or that timely denials were conclusory, vague or without merit as a matter of law.

Reported in New York Official Reports at Spring Rehab, P.T., P.C. v Hereford Ins. Co. (2022 NY Slip Op 51270(U))

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

Spring Rehab, P.T., P.C., as Assignee of Noel Sanchez, Appellant,
against
Hereford Insurance Co., Respondent.

Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber and Ruth Nazarian of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered December 11, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff failed to respond to defendant’s timely requests for additional verification. By order entered December 11, 2019, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Defendant’s cross motion should have been denied. With respect to the claim for date of service November 9, 2017, upon which the fourth cause of action of the complaint was based, the letters defendant sent seeking additional verification were incorrectly addressed to another [*2]provider, and, thus, the parties agree that defendant did not establish its entitlement to summary judgment dismissing that cause of action. With respect to the remaining claims, defendant failed to establish, prima facie, that it properly requested additional verification, since defendant’s letters to plaintiff, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting verification from plaintiff (see Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's motion properly denied because its proof did not establish that the claims were not timely denied or that the insurer's timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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: Defense rejected because the insurer's requests or proof were deficient

Rejected the insurer's prematurity defense because its letters merely stated it was awaiting specified documents without actually requesting verification, and for one claim were addressed to another provider.

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

Cited in this decision

A label shows how this decision treated the case it cites.

Clear Water Psychological Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 50847(U)) FollowedThe insurer's letters merely reported missing documents and did not establish proper verification requests warranting dismissal.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Motionpro Physical Therapy v Hereford Ins. Co. (2018 NY Slip Op 50251(U))The insurer established its IME nonappearance defense to the second claim, but the IME was scheduled too late to support the first.
JPF Med. Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 51372(U))The provider's affidavit raised a factual issue over delivery of requested verification, precluding summary judgment for either side.
Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment.