May 8, 2009
Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-liberty-mut-ins-co-2009-ny-slip-op52500u/
- Decided
- May 8, 2009
- Citation
- 2009 NY Slip Op 52500(U) · 25 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · Outstanding verification and premature actions (see the maps)
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.
Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U))
| Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. |
| 2009 NY Slip Op 52500(U) [25 Misc 3d 142(A)] |
| Decided on May 8, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2007-1326 K C.
against
Liberty Mutual Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated July 23, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff failed to respond to verification requests. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.
On appeal, plaintiff argues that defendant failed to establish the mailing of the verification requests because the affidavit of defendant’s claims specialist did not demonstrate personal knowledge of such mailing or set forth defendant’s standard office practices and procedures used to ensure that such requests are properly addressed and mailed. Contrary to plaintiff’s contention, the affidavit of defendant’s claims specialist sufficiently established the mailing of the verification requests (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).
Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.
Accordingly, the order, insofar as appealed from, is affirmed.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: May 08, 2009
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.
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 argument that the claims specialist's affidavit lacked personal knowledge or a description of standard office practice, holding it sufficiently established mailing of the verification requests.
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Affirmed dismissal of the action as premature for failure to respond to verification requests after finding the insurer's mailing of those requests sufficiently established.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Similar decisions
- Vista Surgical Supplies, Inc. v Autoone Ins. Co. (2008 NY Slip Op 51460(U))The insurer obtained dismissal of an unverified claim as premature but failed to prove IME nonappearance on a separate claim.
- Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U))The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
- Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))The provider failed to establish its prima facie case because its officer's affidavit lacked a foundation for the billing records.
- Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50939(U))The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation.
- Vista Surgical Supplies, Inc. v General Assur. Co. (2006 NY Slip Op 51034(U))The provider's action was premature because timely verification requests remained unanswered when the action began.