November 9, 2018

T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))

https://www.beynensonlaw.com/case-law/t-s-med-supply-corp-v-travelers-ins-co-2018-ny-slip-op-51597u/

Court: Appellate Term, Second Department
Decided: November 9, 2018
Citation: 2018 NY Slip Op 51597(U) · 61 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests
Legal questions: Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

T & S Med. Supply Corp. v Travelers Ins. Co., 61 Misc 3d 139(A), 2018 NY Slip Op 51597(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 owner's affidavit raised a factual issue about receipt of verification and whether the action was premature. The insurer established timely mailing of its initial and follow-up verification requests and made a prima facie showing that the requested verification had not been received. In opposition, the owner's affidavit was sufficient to create a presumption that the verification had been mailed to and received by the insurer. That evidence presented a triable issue concerning the prematurity defense. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied its motion.

Reported in New York Official Reports at T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))

[*1]

T & S Med. Supply Corp. v Travelers Ins. Co.

2018 NY Slip Op 51597(U) [61 Misc 3d 139(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-728 K C

T & S Medical Supply Corp., as Assignee of Lacina Koller, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 27, 2016. 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 January 27, 2016, 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 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 this action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op [*2]51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018

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 owner'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 1,384 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 owner'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 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.
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.
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

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.
TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))The provider's affidavit raised a triable issue as to verification receipt and defeated the insurer's prematurity motion.
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.
TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51248(U))The provider's affidavit created a presumption of verification receipt and raised a triable issue concerning prematurity.
Vladenn Med. Supply Corp. v Travelers Ins. Co. (2016 NY Slip Op 50381(U))The provider's employee affidavit raised a triable issue as to whether requested verification was received, defeating dismissal as premature.