December 6, 2019

Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))

https://www.beynensonlaw.com/case-law/milky-way-acupuncture-p-c-v-nationwide-ins-2019-ny-slip-op51968u/

Court: Appellate Term, Second Department
Decided: December 6, 2019
Citation: 2019 NY Slip Op 51968(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Proof of mailing (see the maps)

Cite as

Milky Way Acupuncture, P.C. v Nationwide Ins., 2019 NY Slip Op 51968(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 renewal affidavit failed to identify the insurer to which it claimed to have resubmitted the bills. The insurer obtained summary judgment based on nonreceipt, and the Civil Court noted that the bills were addressed to MVAIC. On renewal, the provider's owner asserted resubmission to an insurance carrier without identifying that carrier. The insurer's litigation claims specialist established nonreceipt, and the owner's affidavit did not demonstrate mailing to the defendant insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which adhered on renewal to dismissal of the complaint. The provider's remaining arguments lacked merit.

Reported in New York Official Reports at Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))

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

Milky Way Acupuncture, P.C., as Assignee of Polanco, Freddy, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered February 13, 2018. The order, insofar as appealed from, upon renewal, adhered to the determination in a prior order of that court entered January 17, 2017 granting defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered February 13, 2018, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider, commenced in 2015, to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit the bills at issue to defendant. By order entered January 17, 2017, the Civil Court granted the motion, noting, among other things, that the bills had been addressed to “MVAIC” (Motor Vehicle Accident Indemnification Corporation), not defendant. Plaintiff moved, insofar as is relevant, for leave to renew its opposition to defendant’s motion and, upon renewal, for an order denying defendant’s motion. Plaintiff supported its motion with a new affidavit by its owner, who stated that the bills at issue had been “resubmitted to insurance carrier” on June 7, 2010. Defendant opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2018, as, upon renewal, adhered to its prior [*2]determination granting defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s arguments, the affidavit of defendant’s litigation claims specialist established that defendant had not received the claims at issue (see Alleviation Med. Servs., P.C. v 21st Century Ins. Co., 53 Misc 3d 128[A], 2016 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 49 Misc 3d 148[A], 2015 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and the affidavit submitted in support of plaintiff’s motion for leave to renew failed to demonstrate that the claim forms had been mailed to defendant, as plaintiff’s owner merely stated that the “documents were resubmitted to insurance carrier” without establishing the identity of the carrier to whom plaintiff had resubmitted the claim forms.

Plaintiff’s remaining arguments lack merit.

Accordingly, the order entered February 13, 2018, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019

Legal questions

A question 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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response

Held the provider's renewal affidavit did not show the claim forms were mailed to the insurer, which had proved nonreceipt, because the owner said only that the bills were resubmitted to an unidentified insurance carrier.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.

Similar decisions

Milky Way Acupuncture, P.C. v Allstate Ins. Co. (2020 NY Slip Op 50935(U))The insurer failed to establish an excusable default, and the provider's default judgment remained in place.
Milky Way Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50590(U))MVAIC's summary judgment motion was granted because its papers showed that the provider sued after the three-year limitations period expired.
Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
WJJ Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2011 NY Slip Op 52288(U))The insurer failed to establish timely mailing of its denials asserting that the provider's fees exceeded the workers' compensation fee schedule.
Charles Deng Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 50641(U))The insurer failed to establish mailing of the cancellation notice required to terminate the Pennsylvania policy before the accident.