December 19, 2011

W.H.O. Acupuncture, P.C. v State-Wide Ins. Co. (2011 NY Slip Op 52298(U))

https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-state-wide-ins-co-2011-ny-slip-op52298u/

Court
Appellate Term, Second Department
Decided
December 19, 2011
Citation
2011 NY Slip Op 52298(U) · 34 Misc 3d 128(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Timeliness and preclusion Verification requests
Legal questions
Proof of mailing (see the maps)
Cite as
W.H.O. Acupuncture, P.C. v State-Wide Ins. Co., 34 Misc 3d 128(A), 2011 NY Slip Op 52298(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 admitted mailing its denial after 30 days and failed to establish a verification toll, defeating summary judgment. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer summary judgment, and denied its motion. Although the provider first challenged timeliness on appeal, the claims examiner's affidavit admitted mailing the denial more than 30 days after receipt of the claims. The court considered the argument because it presented a legal issue on the face of the record that could not have been avoided if raised earlier. The insurer's papers did not establish timely mailing of verification requests and therefore did not establish tolling.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v State-Wide Ins. Co. (2011 NY Slip Op 52298(U))

[*1]
W.H.O. Acupuncture, P.C. v State-Wide Ins. Co.
2011 NY Slip Op 52298(U) [34 Misc 3d 128(A)]
Decided on December 19, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-1747 Q C.
W.H.O. Acupuncture, P.C. as Assignee of BASALO LEONARD, Appellant,

against

State-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed from a judgment of the same court entered July 28, 2010, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant’s motion for summary judgment dismissing the complaint is vacated, and defendant’s motion for summary judgment 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 as granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is that defendant was not entitled to summary judgment because defendant’s denial of claim form was untimely. Although this argument is raised for the first time on appeal, the affidavit of defendant’s claims examiner admits that the denial of claim form was mailed more than 30 days after defendant had received plaintiff’s claims. As a result, “this issue may be raised for the first time on appeal, since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture” (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]). Inasmuch as defendant’s moving papers were insufficient to establish that defendant had timely mailed requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that its 30-day claim determination period was tolled. In light of the foregoing, defendant’s motion for summary judgment should have been denied. [*2]

Accordingly, the judgment is reversed, so much of the order as granted defendant’s motion for summary judgment dismissing the complaint is vacated, and defendant’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

Decision Date: December 19, 2011

Similar decisions