CPLR 3212(g) struck

Court Clarifies Burden of Proof in No-fault Insurance Litigation

New York’s no-fault insurance system creates specific procedural requirements that both insurers and medical providers must navigate carefully. A recent appellate decision highlights an important distinction about what plaintiffs must prove at trial versus what defendants must establish when challenging no-fault claims.

The case involves the fundamental question of prima facie burden in no-fault litigation — specifically, whether medical providers must prove their compliance with insurance company verification requests as part of their initial case, or whether such compliance issues fall under the defendant’s burden to prove meritorious defenses.

This decision adds to the ongoing evolution of prima facie case requirements in New York’s appellate courts, where different departments have sometimes reached varying conclusions on similar procedural issues.

Jason Tenenbaum’s Analysis:

TAM Med. Supply Corp. v Travelers Ins. Co., 2018 NY Slip Op 50315(U)(App. Term 2d Dept. 2018)

Sometimes, these orders are written in such a way where the Plaintiff has to actually prove something at trial. What I find obnoxious is that the proof of submission of the verification in the first instance is a boilerplate affidavit with nothing to substantiate is averments. Can somebody already take this up?

“Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152, 2015 NY Slip Op 51760 ). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 ), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with verification requests.""

Legal Significance: Allocation of Burdens Between Prima Facie Case and Affirmative Defenses

The TAM Medical Supply decision clarifies a critical distinction in no-fault litigation between elements comprising the plaintiff’s prima facie case and those constituting defendant’s affirmative defenses. Plaintiffs bear the burden of proving the fact and amount of loss sustained—meaning they must establish that covered services were provided and quantify the reasonable value of those services. This prima facie case forms the foundation of any reimbursement claim and must be proven at trial regardless of what defenses the defendant asserts.

However, compliance with insurance company verification requests falls outside the prima facie case. Instead, non-compliance with verification constitutes an affirmative defense that carriers must plead and prove. This allocation reflects the principle that plaintiffs need not anticipate and disprove every possible defense when establishing their initial case. Rather, plaintiffs prove the essential elements of their claims, and defendants bear the burden of establishing facts supporting any affirmative defenses they assert.

The decision corrects a trial court error that would have required plaintiffs to prove verification compliance as part of their prima facie showing. Such burden misallocation would fundamentally alter no-fault litigation dynamics by forcing providers to affirmatively establish compliance with every carrier request rather than requiring carriers to prove non-compliance when asserting verification defenses. This improper burden shift would particularly prejudice providers in cases where verification requests were ambiguous, unreasonable, or never actually sent—circumstances that should advantage providers rather than requiring them to prove negatives.

The ruling also demonstrates the proper application of CPLR 3212(g), which permits courts to search the record and grant summary judgment to non-moving parties when the moving party’s submissions establish the non-movant’s entitlement to judgment. However, in conducting such sua sponte analysis, courts must properly allocate burdens and cannot shift affirmative defense burdens onto plaintiffs merely because those defenses arose during motion practice.

Practical Implications: Trial Preparation and Burden Allocation Strategies

For medical providers, this decision provides important guidance regarding trial preparation. Providers need not prepare extensive evidence regarding their compliance with every verification request as part of their prima facie case presentation. Instead, they should focus trial preparation on proving that services were actually rendered and establishing the reasonable value of those services through proper billing records, medical documentation, and fee schedule references. Evidence regarding verification compliance should be prepared for potential rebuttal rather than as part of the case-in-chief.

This allocation also affects settlement negotiations and case evaluation. When providers assess claim values and litigation risks, they should recognize that verification compliance issues constitute affirmative defenses that carriers must prove rather than elements that providers must establish. This means that unless carriers have strong evidence of verification requests being sent and ignored, verification defenses may not survive directed verdict motions or may fail at trial for lack of proof—circumstances that should inform settlement positioning.

For insurance carriers, the decision underscores the importance of thoroughly documenting verification request mailings and maintaining comprehensive records of provider responses. At trial, carriers asserting verification defenses must present proof that requests were sent, what specific information was requested, when responses were due, and that providers failed to supply the requested materials. Carriers cannot rely on placing this burden on providers but must affirmatively establish each element of the defense.

The ruling also highlights the risks of CPLR 3212(g) orders that misallocate burdens. When courts issue such orders in no-fault cases, counsel should carefully review the burden allocations specified and seek corrections where orders improperly shift defense burdens onto plaintiffs. Appeals from final judgments that incorporated erroneous burden allocations may succeed based on improper trial frameworks, but the costs and delays of appellate correction exceed those of promptly challenging erroneous orders.

Key Takeaway

The appellate court confirmed that while medical providers must establish their prima facie case at trial, proving compliance with verification requests falls under the insurance company’s burden to demonstrate meritorious defenses. This ruling prevents courts from improperly shifting verification compliance issues onto plaintiffs during the initial burden phase.

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