November 13, 2015

T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))

https://www.beynensonlaw.com/case-law/t-j-chiropractic-p-c-v-american-tr-ins-co-2015-ny-slip-op51673u/

Court: Appellate Term, Second Department
Decided: November 13, 2015
Citation: 2015 NY Slip Op 51673(U) · 49 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

T & J Chiropractic, P.C. v American Tr. Ins. Co., 49 Misc 3d 146(A), 2015 NY Slip Op 51673(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 proof of mailing requested verification raised a factual issue as to whether its action was premature. The insurer's no-fault examiner established prima facie that the requested verification had not been received, supporting dismissal of the assigned-benefits action as premature under 11 NYCRR 65-3.8 (a). In opposition, the provider's owner submitted an affidavit sufficient to create a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the denial of the provider's summary judgment motion intact.

Reported in New York Official Reports at T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))

[*1]

T & J Chiropractic, P.C. v American Tr. Ins. Co.

2015 NY Slip Op 51673(U) [49 Misc 3d 146(A)]

Decided on November 13, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-907 Q C

T & J Chiropractic, P.C. as Assignee of WASEEM AKHTAR, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. 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 and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff had failed to provide requested verification.

In support of its cross motion, defendant submitted an affidavit by its no-fault examiner which was sufficient to demonstrate prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, 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 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015

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 provider owner's affidavit sufficient to raise a presumption that the requested verification was mailed and received, which against the insurer's non-receipt affidavit created 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 the provider's affidavit raised a presumption that the requested verification was mailed and received, despite the examiner's non-receipt affidavit.

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.

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.

Similar decisions

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))The provider's mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature.
Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50910(U))The provider's owner's affidavit raised a factual issue as to receipt of requested verification and whether the action was premature.
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.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.
T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.