July 12, 2019

Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51149(U))

https://www.beynensonlaw.com/case-law/veraso-med-supply-corp-v-state-farm-mut-auto-ins-co-2019-ny-slip-op51149u/

Court: Appellate Term, Second Department
Decided: July 12, 2019
Citation: 2019 NY Slip Op 51149(U) · 64 Misc 3d 135(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

Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 135(A), 2019 NY Slip Op 51149(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 affidavit raised a triable issue as to whether it had furnished the verification requested for the second cause of action. The insurer had obtained summary judgment dismissing that cause of action for failure to provide verification. The opposing affidavit created a presumption that the verification had been mailed to and received by the insurer under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied that branch of the insurer's motion.

Reported in New York Official Reports at Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51149(U))

[*1]

Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co.

2019 NY Slip Op 51149(U) [64 Misc 3d 135(A)]

Decided on July 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-1416 K C

Veraso Medical Supply Corp., as Assignee of Vega, Carlos, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 19, 2016. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the second cause of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branch of defendant’s motion seeking summary judgment dismissing the second cause of action on the ground that plaintiff had failed to provide requested verification.

Plaintiff correctly argues that the affidavit it submitted in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and thus that there is a triable issue of fact as to whether the verification had been provided.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

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

ENTER:
Paul Kenny
Chief Clerk
July 12, 2019
Decision Date: July 12, 2019

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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response

Held the provider's opposing affidavit sufficient to give rise to a presumption that the requested verification was mailed to and received by the insurer, so summary judgment on the verification defense was denied for 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (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 dismissal of the second cause of action improper because the provider's affidavit raised a presumption the verification was mailed and received, leaving a triable issue whether it was provided.

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

Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))The provider's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification.
JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))The provider's affidavit raised a factual issue over receipt of requested verification and whether the second cause of action was premature.
Veraso Med. Supply Corp. v Victoria Fire & Cas. Co. (2019 NY Slip Op 50690(U))The insurer's summary judgment dismissing the claims for failure to give accident notice within 30 days was affirmed.
Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51857(U))The provider's mailing affidavit raised a triable issue as to whether its action was premature for failure to supply verification.
Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50739(U))The provider's affidavit raised a triable issue as to whether it had supplied the insurer's requested verification.