September 19, 2016

Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51353(U))

https://www.beynensonlaw.com/case-law/ultimate-health-prods-inc-v-allstate-ins-co-2016-ny-slip-op51353u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51353(U) · 53 Misc 3d 129(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

Ultimate Health Prods., Inc. v Allstate Ins. Co., 53 Misc 3d 129(A), 2016 NY Slip Op 51353(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 failed to establish timely mailing of verification requests, requiring vacatur of a finding under CPLR 3212 (g). The Civil Court, Kings County, denied both parties' summary judgment motions but limited trial to whether the provider had complied with the insurer's requests. The Appellate Term, Second Department, vacated the finding favoring the insurer because its cross-moving papers did not establish timely mailing as a matter of law. The provider also lacked entitlement to summary judgment: the record did not establish that the requests were untimely or, if timely, that the insurer received the requested verification and its time to pay or deny expired. The order, insofar as appealed from, was modified accordingly and otherwise affirmed.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51353(U))

[*1]

Ultimate Health Prods., Inc. v Allstate Ins. Co.

2016 NY Slip Op 51353(U) [53 Misc 3d 129(A)]

Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2430 K C

Ultimate Health Products, Inc., as Assignee of HENRIETTA NOICELY, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered September 5, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, upon denying defendant’s cross motion for summary judgment dismissing the complaint, made, in effect, a CPLR 3212 (g) finding in defendant’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is vacated; as so modified, the order, insofar as appealed from, 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 on the ground that the action was premature due to plaintiff’s failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court denied plaintiff’s motion and, upon denying defendant’s cross motion, made, in effect, a CPLR 3212 (g) finding in defendant’s favor, and held that the only remaining issue for trial was whether plaintiff had complied with defendant’s requests for verification.

Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the letters requesting verification had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, the Civil Court’s finding that defendant had established the timely mailing of the verification requests is vacated. However, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment, since the record does not establish, as a matter of law, that the verification requests were untimely or, if they were timely, that defendant received the requested verification and that defendant’s time to pay or deny the claim had expired.

Accordingly, the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is vacated.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's papers failed to establish as a matter of law that the verification request letters were timely mailed, so the lower court's finding of timely mailing was vacated.

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, 260 (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 neither party entitled to judgment because the record established neither the timely mailing of the requests nor that the requests were untimely or that the verification was received.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

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.

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.

Similar decisions

Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51404(U))The insurer's summary judgment dismissal on the EUO nonappearance defense was affirmed upon a finding of timely mailing of the EUO letters.
Longevity Med. Supply, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50757(U))The provider failed to eliminate a factual issue about whether it had served responses to the insurer's verification requests.
Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient.
PFJ Med. Care, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50361(U))The provider's affidavit raised a factual issue whether requested verification had been mailed to and received by the insurer.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 51229(U))The insurer's unrebutted mailing evidence established a timely denial based on the provider's failure to appear for EUOs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment.