November 16, 2018

Right Aid Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51641(U))

https://www.beynensonlaw.com/case-law/right-aid-med-supply-corp-v-hereford-ins-co-2018-ny-slip-op51641u/

Court: Appellate Term, Second Department
Decided: November 16, 2018
Citation: 2018 NY Slip Op 51641(U) · 61 Misc 3d 142(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

Right Aid Med. Supply Corp. v Hereford Ins. Co., 61 Misc 3d 142(A), 2018 NY Slip Op 51641(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 verification-mailing affidavit raised a triable issue whether its no-fault action was premature. The insurer sought summary judgment dismissing the assigned benefits complaint because requested verification remained outstanding and made a prima facie showing of nonreceipt. The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. That conflicting proof left a factual issue concerning prematurity. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order, insofar as appealed from, denying the insurer's motion and leaving the provider's action pending.

Reported in New York Official Reports at Right Aid Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51641(U))

[*1]

Right Aid Med. Supply Corp. v Hereford Ins. Co.

2018 NY Slip Op 51641(U) [61 Misc 3d 142(A)]

Decided on November 16, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1366 K C

Right Aid Medical Supply Corp., as Assignee of Quezada, Mery M., Respondent,
against
Hereford Insurance Co., Appellant.

Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 27, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment which sought to dismiss the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.

While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff 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]). As a triable issue of fact exists as to whether this action is premature (see Compas Med., P.C. v. Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the provider's affidavit sufficient to raise a presumption that the requested verification was mailed to and received by the insurer despite the insurer's showing of nonreceipt, creating 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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 99 (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 a triable issue existed as to prematurity because the provider's affidavit raised a presumption that the verification was mailed and received, despite the insurer's showing of nonreceipt.

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, 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.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.

Similar decisions

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.
Right Aid Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51714(U))The provider's affidavit raised a triable issue as to whether its action was premature for failure to supply requested verification.
Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))The provider's affidavit raised a factual issue over whether requested verification remained outstanding.
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.
Adelaida M. Laga, PT v Hereford Ins. Co. (2017 NY Slip Op 51462(U))The provider's affidavit raised a factual issue about receipt of requested verification, defeating the insurer's prematurity motion.