September 15, 2016

TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-american-tr-ins-co-2016-ny-slip-op51318u/

Court: Appellate Term, Second Department
Decided: September 15, 2016
Citation: 2016 NY Slip Op 51318(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

TAM Med. Supply Corp. v American Tr. Ins. Co., 2016 NY Slip Op 51318(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 insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second. For the first claim, mailing proof covered verification requests and denials, the initial verification request was sent within 15 business days of the provider's asserted submission date, and a doctor's affidavit established IME nonappearance. For the second, the insurer proved neither denial within 30 days of receipt nor tolling through timely verification requests. The provider also failed to establish that the second claim was untimely denied or that a timely denial was legally insufficient. The Appellate Term, Second Department, modified the order to deny dismissal of the second cause of action, otherwise affirming dismissal of the first and denial of the provider's summary judgment motion.

Reported in New York Official Reports at TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))

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

TAM Medical Supply Corp., as Assignee of Courtney Philbert, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 10, 2014. 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 the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action 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.

Contrary to plaintiff’s argument with respect to the claim underlying plaintiff’s first cause of action, the affidavits submitted by defendant were sufficient to give rise to a presumption that defendant’s verification request, follow-up verification request and denial of claim forms had been properly mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s argument that defendant did not initially request written verification in time to toll its time to pay or deny this claim, which claim defendant did not deny within 30 days of its receipt, fails, as defendant demonstrated that it had mailed its initial verification request within 15 business days of the date plaintiff claims to have submitted its claim form (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), in that the affidavit executed by Dr. Russ established, prima facie, that plaintiff’s assignor had failed to appear for independent medical examinations on the dates set forth in the affidavit.

However, as plaintiff argues, defendant has not demonstrated that the claim underlying plaintiff’s second cause of action was timely denied, because it did not demonstrate, as a matter of law, that it had denied the claim within 30 days of its receipt or that it had tolled its time to pay or deny the claim by timely requesting written verification (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the second cause of action should have been denied.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment on its second cause of action, as the affidavit plaintiff submitted in support of its motion failed to establish that this claim 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 a timely denial of claim that was 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 the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action is denied.

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

Decision Date: September 15, 2016

Legal questions (4)

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer's defense failed for one claim because it did not show the claim was denied within 30 days or that verification requests tolled its time, while the other claim was timely denied after tolling.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Claimant's prima facie case on motions

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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 failed its prima facie burden on the second claim because its affidavit did not show the claim had not been timely denied or that a timely denial was conclusory, vague or meritless.

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Rejected the provider's challenge and held the insurer's affidavits raised a presumption that its verification request, follow-up request and denial forms for the first claim were properly mailed.

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

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected (rules on the question, but another ground decided the case)

Held the examining doctor's affidavit established, prima facie, that the assignor failed to appear for IMEs on the stated dates, showing a breach of a condition precedent to coverage.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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.
Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U)) FollowedThe insurer's IME nonappearance denials were timely because it issued them within 30 days after receiving requested written verification.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
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) FollowedThe 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)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51238(U))The insurer's summary judgment dismissal of the second cause was affirmed after the provider's denial-mailing challenge was rejected.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
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.
Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))The insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.