December 19, 2017

Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))

https://www.beynensonlaw.com/case-law/acupuncture-choice-p-c-v-american-tr-ins-co-2017-ny-slip-op51822u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51822(U) · 58 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case IME no-show
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Acupuncture Choice, P.C. v American Tr. Ins. Co., 58 Misc 3d 136(A), 2017 NY Slip Op 51822(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 entitlement to summary judgment where timely IME nonappearance denials remained unrebutted. The insurer moved to dismiss assigned no-fault claims, and the provider cross-moved for summary judgment. The Civil Court denied both motions, leaving for trial whether the IME scheduling letters had been properly generated and whether the assignor failed to appear. The record contained timely denials based on IME nonappearance, and the provider established neither attendance nor that the denials lacked merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's cross motion and rejected its remaining contentions.

Reported in New York Official Reports at Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))

[*1]

Acupuncture Choice, P.C. v American Tr. Ins. Co.

2017 NY Slip Op 51822(U) [58 Misc 3d 136(A)]

Decided on December 19, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1154 K C

Acupuncture Choice, P.C., as Assignee of Equan Thomason, Appellant,
against
American Transit Ins. Co., Respondent.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant’s motion and plaintiff’s cross motion, but held that the only issues for trial were whether defendant’s IME scheduling letters had been properly “generated” and whether plaintiff’s assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

As the record contains denial of claims forms which timely denied plaintiff’s claims on the ground that plaintiff’s assignor did not appear for scheduled IMEs, and plaintiff failed to establish that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law, plaintiff failed to establish its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v [*2]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]).

Consequently, the Civil Court properly denied plaintiff’s cross motion. Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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 its prima facie burden because the record showed timely denials on the IME no-show ground and the provider did not show its assignor appeared or that the denials lacked merit as a matter of law.

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

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 Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
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.