December 18, 2017

Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))

https://www.beynensonlaw.com/case-law/bright-med-supply-co-v-nationwide-ins-co-of-am-2017-ny-slip-op51700u/

Court: Appellate Term, First Department
Decided: December 18, 2017
Citation: 2017 NY Slip Op 51700(U) · 58 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Bright Med. Supply Co. v Nationwide Ins. Co. of Am., 58 Misc 3d 126(A), 2017 NY Slip Op 51700(U) (App Term, 1st Dept 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 insurer's conclusory nonreceipt affidavit failed to establish that the provider's claim was improperly or untimely submitted. The claim specialist asserted that the insurer had no record of receiving the claim and never accepted mail at the Florida post office box used. The affidavit did not describe mail retrieval, opening, indexing, or claim file practices; establish whether the box belonged to the insurer; or identify the correct mailing address. The insurer therefore failed to meet its prima facie burden, requiring denial regardless of the provider's opposition under Alvarez v Prospect Hosp. The Appellate Term, First Department, reversed the order, denied the insurer's summary judgment motion, and reinstated the complaint.

Reported in New York Official Reports at Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))

[*1]

Bright Med. Supply Co. v Nationwide Ins. Co. of Am.

2017 NY Slip Op 51700(U) [58 Misc 3d 126(A)]

Decided on December 18, 2017

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
17-358

Bright Medical Supply Co. a/a/o Raisa Shekhter, Plaintiff-Appellant,
against
Nationwide Insurance Company of America, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered July 9, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Eddie J. McShan, J.), entered July 9, 2013, reversed, with $10 costs, defendant’s motion denied and complaint reinstated.

Defendant-insurer failed to establish its entitlement to summary judgment dismissing the underlying first-party no-fault action based upon plaintiff’s alleged failure to provide defendant with proof of claim. The vague and conclusory assertions by defendant’s claim specialist that defendant had “no record of receiving” the underlying claim, which, it is alleged, was improperly mailed to a certain Florida post office box where defendant “never accepted mail,” were insufficient to make a prima facie showing that the claim was not properly and timely submitted (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; Easy Care Acupuncture PC v MVAIC, 45 Misc 3d 131[A], 2014 NY Slip Op 51645[U] [App Term, 1st Dept 2014]). Conspicuously absent from the moving affidavit was any description of defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), any indication whether the specified Florida post office box actually belonged to defendant, or even the correct address where the claim should have been sent. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 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.

Proof of mailing

Open the full map

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

This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response

Held the insurer's conclusory no-record affidavit, lacking any description of its mail-handling practices or proof the post office box was its address, insufficient to show the claim was not properly and timely submitted.

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 160 decisions on this question in the First Department courts and the Court of Appeals, 12 (this one included) are in the same category.

Cited in this decision

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

SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U)) FollowedThe insurer failed to prove that the provider's bills were received beyond the 45-day claim-submission limit.
Easy Care Acupuncture PC v MVAIC (2014 NY Slip Op 51645(U)) FollowedMVAIC failed to prove late claim submission because its representative's conclusory assertion of unawareness did not establish nonreceipt.

Cited by

New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U))The insurer failed to prove nonreceipt of the claims because its affidavit did not establish incoming-mail practices and procedures.

Similar decisions

Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))The insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50764(U))The insurer's summary judgment motion based on EUO nonappearance was denied because it failed to establish timely denial.
Bright Med. Supply Corp. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50536(U))The insurer's summary judgment appeal was dismissed as moot after it obtained dismissal of the complaint on reargument.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.