December 7, 2018

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51815(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-21st-century-ins-co-2018-ny-slip-op-51815u/

Court: Appellate Term, Second Department
Decided: December 7, 2018
Citation: 2018 NY Slip Op 51815(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 51815(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 insurer failed to prove that Florida law applied or that admissible payment records established exhaustion of policy limits. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment, while affirming denial of the provider's motion. The insurer offered no admissible evidence establishing the applicability of Florida law and its asserted policy limit. Even assuming that law applied, its affidavits did not establish the annexed payment log as a business record under CPLR 4518 (a). The provider likewise failed to establish that its claims were not timely denied or that timely denials were conclusory, vague, or legally meritless.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51815(U))

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

Charles Deng Acupuncture, P.C., as Assignee of Destine, Wooselie, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Marisa Villafana of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 21, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

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

Contrary to the determination of the Civil Court, defendant failed to establish with admissible evidence that Florida law applies to the case at bar and, thus, that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies here, defendant relied upon an annexed payment log to demonstrate that policy limits in the amount of $10,000 had been exhausted; however, the affidavits submitted by defendant failed to establish that the payment log constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]). Consequently, as defendant failed to support its defense that it had paid the full monetary limits of the policy at issue, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely [*2]denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the claimant's motion properly denied because its proof did not establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

JPF Med. Servs., P.C. v Nationwide Ins. (2020 NY Slip Op 51122(U)) FollowedThe insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation.
Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U)) FollowedThe insurer failed to establish policy exhaustion because its claims specialist laid an insufficient foundation for the payment log.
JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U))The insurer failed to prove policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
Masigla v 21st Century Ins. Co. (2019 NY Slip Op 50938(U))The insurer failed to establish through admissible evidence that Florida law applied or that the policy limits were exhausted.

Similar decisions

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51693(U))Both summary judgment motions were denied because neither side established the requisite showing concerning the insurer's denials.
Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))The insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal.
Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co. (2018 NY Slip Op 51554(U))The insurer's cross motion for summary judgment was upheld because its proof established that it had issued no policy covering the loss.
Charles Deng Acupuncture, P.C. v American Commerce Ins. Co. (2016 NY Slip Op 50596(U))The insurer established exhaustion of a Massachusetts policy's medical coverage before one claim was mailed and payment of the other two claims.
Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.