December 7, 2018

Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))

https://www.beynensonlaw.com/case-law/action-potential-chiropractic-pllc-v-travelers-ins-co-2018-ny-slip-op-51811u/

Court: Appellate Term, Second Department
Decided: December 7, 2018
Citation: 2018 NY Slip Op 51811(U)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Declaratory judgment, res judicata
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Action Potential Chiropractic, PLLC v Travelers Ins. Co., 2018 NY Slip Op 51811(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 failed to establish that its claim was untimely denied or that a timely denial was legally insufficient. The Appellate Term, Second Department, reversed the judgment awarding benefits, denied the provider's summary judgment motion, and remitted the insurer's unresolved EUO nonappearance branch for determination. The insurer also invoked collateral estoppel based on an order in a separate action finding nonappearance at the same EUOs. Civil Court properly found that the insurer had not established that order's preclusive effect. However, it had not addressed the independent proof offered in support of the condition-precedent defense. That branch remained to be decided without reliance on the prior order.

Reported in New York Official Reports at Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))

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

Action Potential Chiropractic, PLLC, as Assignee of Brumaire, Shimaine, Respondent,
against
Travelers Insurance Company, Appellant.

Law Offices of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016, deemed from a judgment of that court entered October 4, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $364.78.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 9, 2016 as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to satisfy a condition precedent to coverage.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) on April 17, 2013 and May 6, 2013. Plaintiff opposed the cross motion. Defendant argued in a reply affirmation that the complaint should be dismissed based on plaintiff’s nonappearance at the EUOs, and on the ground of collateral estoppel, based upon an order entered September 4, 2014 by the Civil Court, Queens County, in a separate action, which had granted a motion by defendant for summary judgment dismissing the complaint in that action, finding that defendant had established that plaintiff had failed to appear for EUOs on April 17, 2013 and May 6, 2013. By order entered August 9, 2016, the Civil Court granted plaintiff’s motion and denied the branch of defendant’s cross motion which had sought summary judgment on the ground of collateral estoppel, stating that the September 4, 2014 order of the Civil Court, Queens County, “alone was not sufficient to establish the issue preclusion in this case.”

Plaintiff’s motion for summary judgment should have been denied as the proof submitted [*2]by plaintiff failed to establish that the claim 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 a timely denial of claim form that was 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]). With respect to defendant’s cross motion for summary judgment dismissing the complaint, the Civil Court properly determined that defendant had failed to establish that the September 4, 2014 order has a preclusive effect on the case at bar (see M. Kaminsky & M. Friedberger v Wilson, 150 AD3d 1094 [2017]). However, the Civil Court did not address the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to satisfy a condition precedent to coverage based on the proof defendant submitted therein without regard to the September 4, 2014 order. As a result, the matter is remitted to the Civil Court for a determination of this branch of defendant’s cross motion.

Accordingly, the judgment is reversed, so much of the order entered August 9, 016 as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to satisfy a condition precedent to coverage.

ELLIOT, J.P., WESTON 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 provider's summary judgment motion should have been denied because its proof did not establish that the claim was not timely denied or that a timely denial was 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 1,065 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.

Similar decisions

Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling.
Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))The insurer established timely mailing of EUO notices and the denial, and the provider's failure to appear for the EUOs. Office-practice affidavits proved mailing, and affirmations from attorneys present to conduct the EUOs established the nonappearances.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co. (2016 NY Slip Op 51072(U))An entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry.
Harbor Chiropractic, P.C. v Travelers Ins. Co. (2017 NY Slip Op 50959(U))The provider failed to show that requested verification was supplied before suit, leaving its action premature.