February 28, 2014

Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 50347(U))

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-a-cent-ins-co-2014-ny-slip-op50347u/

Court: Appellate Term, Second Department
Decided: February 28, 2014
Citation: 2014 NY Slip Op 50347(U) · 42 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Verification requests Timeliness and preclusion
Legal questions: Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146(A), 2014 NY Slip Op 50347(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2014)

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.

Resubmission of an identical claim does not restart the insurer's 30-day period to pay or deny it. The insurer established its initial receipt of the hospital claim, timely initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), and the provider's failure to respond. The provider relied on a later submission date but neither rebutted the earlier receipt nor showed compliance with the requests. Because verification remained outstanding, the action was premature under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and, upon reargument and renewal, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 50347(U))

[*1]

Westchester Med. Ctr. v A Cent. Ins. Co.

2014 NY Slip Op 50347(U) [42 Misc 3d 146(A)]

Decided on February 28, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., IANNACCI and MARANO, JJ
2012-1616 N C.

Westchester Medical Center as Assignee of SHAWN JENKINS, Respondent,
against
A Central Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order, insofar as appealed from, upon reargument and renewal, adhered to a prior determination granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 since plaintiff had failed to provide requested documentary verification. By order dated February 29, 2012, the District Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from so much of an order dated June 4, 2012 as, upon reargument and renewal, adhered to the prior determination.

Defendant established, through the affidavit of its no-fault litigation examiner, that it had first received plaintiff’s hospital claim form on May 9, 2011. Defendant further indicated that it had received copies of the same hospital bill on May 25 and July 18, 2011. Defendant also demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]) on May 29, 2011 and June 29, 2011, respectively, and that plaintiff had not responded to the verification requests. Plaintiff, which asserted that defendant had received the claim form on July 18, 2011, failed to rebut defendant’s showing of its receipt of an identical claim on May 9, 2011, or establish that it had responded to defendant’s verification requests. Contrary to plaintiff’s contention, the 30-day period in which to pay or deny a claim did not run anew as the result of plaintiff’s resubmission of the claim (see New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005] Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]). Consequently, the District Court should have dismissed the complaint as premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 [*2]AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order, insofar as appealed from, is reversed, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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.

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: Timely requests went unanswered; the claim is not overdue and the action is premature

Held the action premature because timely initial and follow-up requests went unanswered, measured from the first receipt of the claim, since resubmitting the same bill did not restart the 30-day period.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 151 (this one included) are in the same category.

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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the litigation examiner's affidavit demonstrated timely mailing of initial and follow-up verification requests on the stated dates.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
New York & Presbyt. Hosp. v AIU Ins. Co. (2005 NY Slip Op 06014) FollowedA resubmitted no-fault claim previously and timely denied is not subject to a new 30-day payment-or-denial period.
Hospital for Joint Diseases v Allstate Ins. Co. (2004 NY Slip Op 01546) FollowedResubmission of a previously denied no-fault claim does not restart the insurer's 30-day period to deny it.
Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038) FollowedThe hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.

Cited by

A label shows how the later decision treated this one.

A.C. Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50841(U)) FollowedThe provider could not retroactively end a verification toll by dropping the services at issue after commencing its action.

Similar decisions

Westchester Med. Ctr. v Country Wide Ins. Co. (2011 NY Slip Op 03838)The insurer raised a triable issue as to whether the hospital fully complied with its verification demand.
Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal.
Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U))Conflicting evidence concerning delivery of requested verification prevented summary judgment for the provider.
St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00214)The insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature.
Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50033(U))The insurer established that unanswered, timely verification requests tolled its time to pay or deny the hospital's claim.