March 23, 2018

Arnica Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50415(U))

https://www.beynensonlaw.com/case-law/arnica-acupuncture-p-c-v-allstate-ins-co-2018-ny-slip-op-50415u/

Court: Appellate Term, Second Department
Decided: March 23, 2018
Citation: 2018 NY Slip Op 50415(U)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Arnica Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50415(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.

Neither party established entitlement to summary judgment because each failed to make the required showing concerning the insurer's denials. The provider sought assigned no-fault benefits on one claim and alleged unpaid balances on its remaining claims. The insurer failed to establish timely mailing of its denial forms and thus failed to show that its defenses were not precluded. The provider, in turn, failed to establish either denial outside the required 30-day period or timely denials that were conclusory, vague, or without merit as a matter of law under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.

Reported in New York Official Reports at Arnica Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50415(U))

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

Arnica Acupuncture, P.C., as Assignee of Kistoo Christopher, Appellant,
against
Allstate Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Sofya Petrukhin of counsel), for appellant. Peter C. Merani, P.C. (Brian Kratenstein, Eric Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 7, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 seeks to recover upon a claim for $167.04 and upon the allegedly unpaid balance of its remaining claims. Defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 7, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Plaintiff correctly argues that defendant’s moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie entitlement to summary judgment on its cross motion, as plaintiff failed to establish either that defendant had failed to deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018

Legal questions (2)

Questions 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 its prima facie burden on its cross motion because it did not show the claims were not denied within 30 days or that timely denials were conclusory, vague or meritless.

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's moving papers failed to establish timely mailing of its denial of claim forms, so it did not show it was not precluded from asserting its defenses and lost summary judgment.

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, 260 (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) FollowedThe 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)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U))The insurer failed to prove timely denials preserving its fee-schedule defense, and the provider failed to establish entitlement to summary judgment.
Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50830(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.
Mind & Body Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50779(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
KHL Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51709(U))The insurer failed to prove timely mailing of verification requests and denials, and the provider failed to establish its prima facie case.