October 13, 2016

Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-national-liab-fire-ins-co-2016-ny-slip-op51532u/

Court: Appellate Term, Second Department
Decided: October 13, 2016
Citation: 2016 NY Slip Op 51532(U) · 53 Misc 3d 141(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 National Liab. & Fire Ins. Co., 53 Misc 3d 141(A), 2016 NY Slip Op 51532(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 proof of mailing requested verification raised a factual issue over whether its no-fault action was premature. The insurer made a prima facie showing that it had not received the verification. However, the affidavit of the provider's owner created a presumption that the verification had been mailed, leaving a triable issue as to prematurity. 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 Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))

[*1]

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51532(U) [53 Misc 3d 141(A)]

Decided on October 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-635 Q C

TAM Medical Supply Corp., as Assignee of MELISA ABDOUL, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 3, 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 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.

Contrary to plaintiff’s argument on appeal, defendant 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, as plaintiff further argues, the affidavit by plaintiff’s owner was sufficient to give rise to a presumption that the requested verification had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). 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 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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: October 13, 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

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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 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 raised a presumption that the requested verification was mailed to the insurer, which against the insurer's non-receipt showing created a factual 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 that although the insurer showed non-receipt, the provider's affidavit presuming mailing of the verification raised a triable issue whether the action was premature.

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.
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.
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

Tam Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50369(U))The provider's owner's affidavit raised a triable issue as to receipt of requested verification, defeating summary judgment on 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.
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.
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 Hereford Ins. Co. (2017 NY Slip Op 51196(U))The provider's affidavit raised a factual issue over whether requested verification remained outstanding.