July 6, 2018

Acupuncture Now, P.C v GEICO Ins. Co. (2018 NY Slip Op 51084(U))

https://www.beynensonlaw.com/case-law/acupuncture-now-p-c-v-geico-ins-co-2018-ny-slip-op-51084u/

Court: Appellate Term, Second Department
Decided: July 6, 2018
Citation: 2018 NY Slip Op 51084(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Acupuncture Now, P.C v GEICO Ins. Co., 2018 NY Slip Op 51084(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 establish that its policy-cancellation notice was mailed by registered or certified mail as Virginia law required. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion insofar as it sought dismissal for lack of coverage. The insurer asserted cancellation for nonpayment before the accident but did not demonstrate mailing in accordance with office practices and Va. Code Ann. § 38.2-2208 (A) (1) (a). The provider's summary judgment motion remained denied because it failed to establish untimely denials or timely denials that were conclusory, vague or legally meritless. The matter was remitted for determination of the insurer's alternative request to dismiss amounts exceeding the workers' compensation fee schedule.

Reported in New York Official Reports at Acupuncture Now, P.C v GEICO Ins. Co. (2018 NY Slip Op 51084(U))

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

Acupuncture Now, P.C., as Assignee of Studwood, Latoya, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 8, 2016. The order granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage and implicitly denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s cross motion; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage, in that defendant had cancelled the policy, for nonpayment of the premium, prior to the accident at issue. In the alternative, defendant, in effect, sought partial summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of the amounts permitted by the workers’ compensation fee schedule. By order entered April 8, 2016, the Civil Court granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage without addressing the remaining branch of the cross motion, and implicitly denied plaintiff’s motion for summary judgment.

While defendant asserts that Virginia law applies to this case, as the insurance policy had been obtained in Virginia, and it insured a Virginia resident and vehicle, defendant failed to demonstrate that it had mailed its cancellation notice in accordance with its office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) “by registered or certified mail,” as required by the applicable statute (Va. Code Ann. § 38.2-2208 [A] [1] [a]). Consequently, the Civil Court should have denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.

As the remaining branch of defendant’s cross motion was not addressed by the Civil Court, we remit the matter to the Civil Court to determine that branch of defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claims at issue 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 denials 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 the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of lack of coverage is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s cross motion.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 06, 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 failed to make a prima facie showing because its proof did not establish that the claims were not 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 1,065 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.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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 GEICO Ins. Co. (2017 NY Slip Op 51809(U))The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld.
AL Acupuncture, P.C. v Geico Ins. Co. (2017 NY Slip Op 51249(U))The insurer proved full fee-schedule payment of some claims but failed to establish mailing of IME notices for another claim.
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.
Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50829(U))The insurer failed to prove timely mailing of its fee-schedule denial covering the provider's second through fifth causes of action.