New Horizon Surgical Ctr., L.L.C. v Travelers Ins., 2019 NY Slip Op 50281(U)(App. Term 2d Dept. 2019)

“In opposition to the motion, plaintiff submitted an affidavit which stated that all of the verification requested by defendant was provided to defendant and that a copy of the verification provided was annexed. Among the documents annexed was a medical report in which the treating provider stated that plaintiff’s assignor had signed a “separate, comprehensive Informed Consent Form which has been made a portion of the patient’s chart.” Defendant’s verification request included a request for a signed informed consent form executed by plaintiff’s assignor. However, no such document was annexed to plaintiff’s papers as having been provided to defendant. Thus, plaintiff failed to raise an issue of fact as to whether it had provided all of the requested verification.”

When an affidavit with no exhibits stating that Plaintiff complied with the verification, a triable issue of fact is raised. Here, the Plaintiff presented supporting documentation but failed to annex one item. The affidavit stated all verification was sent to Defendant. The result is that the complaint is dismissed.

Now, I agree with the result in this case. How do you reconcile this matter with the consistent denial of summary judgment motions when nothing is submitted with the affidavit?

Verifications were mailed

Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51810(U)(App. Term 2d Dept. 2018)

The relevance here is that my friend Rookie took the District Court published cased and convinced some Civil Court judges that we could not prove mailing.  It made me feel like the partner who could not prove the no show.  Anyway, that case was reversed and so Rookie will take the case out of his Room 809 oral argument tool bag I am assuming.

“Contrary to the determination of the District Court, defendant established the timely mailing of the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant also sufficiently established that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run”

120-day rule rebutted

Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51648(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate prima facie that it had timely mailed initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that it had not received the requested verification; and that it had timely denied the claim on that ground. However, as plaintiff further argues, 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 id.). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.”

Has anyone sought to ask the Second Department to review these cases?  i am hard-pressed to imagine that an affidavit without documentary support is sufficient to raise an issue of fact.  Or, are we all sheep?

120-day rule crumbles

Matter of Progressive Cas. Ins. Co. (Elite Med. Supply of N.Y., LLC), 2018 NY Slip Op 04122 (4th Dept. 2018)

“In his awards, the master arbitrator found that the arbitrator had misapplied the 120-day rule, reasoning that, pursuant to that rule, a claimant who responds within the requisite 120-day period with a “reasonable justification” is permitted to have that objection decided by the arbitrator and, if overruled by the arbitrator, is to be afforded the opportunity to produce the requested information and allow the insurer to base its decision on such information (11 NYCRR 65-3.8 [b] [3]). Contrary to petitioners’ contention, the master arbitrator did not impermissibly perform a de novo review of the evidence. Rather, the master arbitrator vacated the arbitrator’s awards based on “an alleged error of a rule of substantive law” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828, 829 [2d Dept 2017] [internal quotation marks omitted]). Thus, we conclude that the court’s decision to uphold the master arbitrator’s awards in this case was rational (cf. id.).”

This case highlights how important it is to respond and object to verification demands.  The worst thing that can happen, should an objection be lodged, is that the denial of the claim is without prejudice.  I would sense in certain circumstances an objection to an attendance at an EUO landing in a denial could also be a dismissal without prejudice.  The 120-day rule has been neutered and it may have ramifications far beyond 65-3.5 and 65-3.6.

There is no safety valve for a late follow-up

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co.,  2017 NY Slip Op 50939(U)(App. Term 2d Dept. 2018)

I think I failed to specifically comment on this case.  In light of Atlantic Radiology, we now have a difference of opinion between the courts.

“In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]).  Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely

No need to send letter to attorney

Recover Med. Servs., P.C. v Ameriprise Ins. Co.,  2017 NY Slip Op 51892(U)(App. Term 2d Dept. 2017)

Upon review of my blog, I failed to note this case.

With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91, 53 N.Y.S.3d 452 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 964 N.Y.S.2d 59, 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.”

This case is just an off shoot of Advantage Radiology.

Verification issues

Atlantic Radiology Imaging, P.C. v Travelers Prop. Cas. Co. of Am., 2018 NY Slip Op 50053(U)(App. Term 1st Dept. 2018)

“It being undisputed on this record that plaintiff failed to fully respond to the defendant-insurer’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). Even accepting plaintiff’s speculative assertion that defendant’s followup verification request was issued two days beyond the 10-day period prescribed by the regulation (see 11 NYCRR 65-3.6), this does not, under the circumstances here presented, deprive defendant of the benefit of the tolling of the 30-day period during which an insurer must pay or deny the claim (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; Triangle R Inc. v Praetorian Ins. Co., 30 Misc 3d 129[A], 2010 NY Slip Op 52294[U] [App Term, 1st Dept 2010]).”

Two points to be fleshed out here.  First, all verification was not received.  Problem.  Second, the follow-up can be late without consequence.  I sense divergence from the Second Department (AT).

Initially, a late follow-up according to the AT second department eliminated the toll.  The AT First says otherwise.

Second, how do you harmonize the line of AT 2nd cases saying that the affidavit of compliance with verification is sufficient whereas this case which seems to look for record support regarding received verification?

Partial response to verification insufficient

Doctor Goldshteyn Chiropractic, P.C. v Travelers Indem. Co., 2017 NY Slip Op 51816(U)(App. Term 2d Dept. 2017)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the record demonstrates that defendant did not receive requested verification and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Indeed, on appeal, plaintiff notes that it had partially responded to defendant’s verification request

Again, the “partial response paradigm” appears to be fatal to the medical provider.  I suppose the correct record has to be established to see if an objection to verification will destroy an insurance carrier’s summary judgment motion?


Non responded to verification fatal to plaintiff’s case

City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 51839(U)(App. Term 2d Dept. 2017)

“In support of plaintiffs’ motion for summary judgment and in opposition to defendant’s cross motion, plaintiffs submitted affirmations from plaintiffs’ counsel and annexed purported verification responses which expressly stated that plaintiffs were not providing responses to some of defendant’s verification requests. As a result, contrary to plaintiffs’ contention, the record demonstrates that defendant had not received all of the requested verification and, thus, that the action is premature”

This is interesting because we are left to reason that certain verification was objected to and certain verification was provided.  The Court held that the failure to provide the requested verification (or to indicate where the verification could be obtained) renders the action premature.  This Court has often stated that the failure to fully comply with verification renders the matter premature.

First sighting of 120-day rule

TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 2017 NY Slip Op 51247(U)(App. Term 2d Dept. 2017)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff’s failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). ”

The case was followed the usual rubric where the Court found a non-specific affidavit sufficient to raise an issue of fact.  What is more interesting, however, is the Court held that the a 120-day denial had to be timely issued.  This begs the question: When is a 120-day denial “timely” denied?  Good question.