March 16, 2016

Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-american-tr-ins-co-2016-ny-slip-op50369u/

Court: Appellate Term, Second Department
Decided: March 16, 2016
Citation: 2016 NY Slip Op 50369(U) · 51 Misc 3d 127(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

Tam Med. Supply Corp. v American Tr. Ins. Co., 51 Misc 3d 127(A), 2016 NY Slip Op 50369(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 triable issue as to receipt of requested verification, defeating summary judgment on prematurity. The insurer established timely mailing of its initial and follow-up verification requests and prima facie nonreceipt of the requested verification, supporting dismissal under 11 NYCRR 65-3.8 (a). The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. That proof raised a factual issue as to whether the action for assigned no-fault benefits was premature. 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 provider's motion denied.

Reported in New York Official Reports at Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))

[*1]

Tam Med. Supply Corp. v American Tr. Ins. Co.

2016 NY Slip Op 50369(U) [51 Misc 3d 127(A)]

Decided on March 16, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1497 Q C

Tam Medical Supply Corp., as Assignee of DOR GUY MARCEL, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 22, 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint as premature because plaintiff had failed to provide requested verification.

In support of its cross 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 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 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: March 16, 2016

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 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 the provider's affidavit raised a presumption that the requested verification was mailed and received, despite the insurer's prima facie showing.

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.
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

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.
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.
TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51506(U))The provider's owner's affidavit raised a factual issue over receipt of requested verification and whether the action was premature.
Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))The provider's affidavit raised a factual issue over whether requested verification remained outstanding.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51319(U))The insurer established proper mailing of verification requests and nonreceipt of the requested verification, rendering the action premature.