April 13, 2017
Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U))
https://www.beynensonlaw.com/case-law/exultant-med-diagnostics-p-c-v-american-commerce-ins-co-2017-ny-slip-op50496u/
- Decided
- April 13, 2017
- Citation
- 2017 NY Slip Op 50496(U) · 55 Misc 3d 136(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U))
| Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. |
| 2017 NY Slip Op 50496(U) [55 Misc 3d 136(A)] |
| Decided on April 13, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ.
2015-2401 N C
against
American Commerce Insurance Company, Appellant.
Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).
Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 17, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.
Upon a review of the record, we find that defendant failed to establish that the denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been properly and timely mailed. The affidavit of defendant’s claims adjuster did not state how defendant obtains the mailing address for the denial of claim forms, so as to ensure that the address is correct, or that the envelopes are affixed with postage (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Contemporary Acupuncture, P.C. v Allstate Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Consequently, defendant failed to establish its prima facie entitlement to summary judgment.
Accordingly, the order is affirmed.
Marano, P.J., Iannacci and Garguilo, JJ., concur.
Decision Date: April 13, 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.
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 failed to prove proper and timely mailing of its denials because the adjuster's affidavit did not explain how mailing addresses were obtained to ensure accuracy or that postage was affixed.
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
- Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. (2015 NY Slip Op 03340)The insurers failed to establish timely and proper mailing of denials based on missing verification and EUO nonappearance.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))The insurer failed to establish proper and timely mailing of the EUO notices and denial forms supporting its nonappearance defense.
Similar decisions
- New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
- Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
- A.B. Med. Servs., PLLC v Amex Assur. Co. (2015 NY Slip Op 51271(U))A provider need not lay a business-record foundation for its billing documents to establish prima facie entitlement to summary judgment.
- Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion.
- New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient.