September 21, 2016

Island Life Chiropractic, P.C. v Country Wide Ins. Co. (2016 NY Slip Op 51378(U))

https://www.beynensonlaw.com/case-law/island-life-chiropractic-p-c-v-country-wide-ins-co-2016-ny-slip-op51378u/

Court: Appellate Term, Second Department
Decided: September 21, 2016
Citation: 2016 NY Slip Op 51378(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 5 later decisions (see Cited by)
Issues: Policy issues Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Island Life Chiropractic, P.C. v Country Wide Ins. Co., 2016 NY Slip Op 51378(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 prove mailing of a cancellation notice, and conflicting affidavits raised a factual issue over claim submission. The insurer asserted cancellation before the accident, but its affidavits either merely claimed mailing in the regular course or described only claims-processing mail procedures. They did not establish mailing of the cancellation notice to effect cancellation under Vehicle and Traffic Law § 313 and Banking Law § 576. The insurer separately established nonreceipt of the claim, but the provider owner's mailing affidavit raised a triable issue. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed the denial of the provider's summary judgment motion.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Country Wide Ins. Co. (2016 NY Slip Op 51378(U))

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

Island Life Chiropractic, P.C., as Assignee of CONNIE STEVENSON, Appellant,
against
Country Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 10, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant asserted that there was no coverage for the accident because plaintiff’s assignor’s insurance policy had been cancelled prior to the accident. The supporting affidavits of defendant’s employees both stated that the notice of cancellation had been issued and mailed to the assignor on June 28, 2011, and the affidavit of defendant’s underwriting supervisor simply stated that the notice had been mailed in the regular course of business. While the affidavit of defendant’s no-fault litigation supervisor described defendant’s mailing practices and procedures with respect to claims processing, it did not describe the process involved where other correspondence, such as a notice of cancellation, is mailed. As a result, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in order to effectuate the cancellation (see generally Vehicle and Traffic Law § 313; Banking Law § 576). Therefore, defendant was not entitled to summary judgment dismissing the complaint on this basis.

The affidavit of defendant’s no-fault litigation supervisor, however, was sufficient to establish, prima facie, defendant’s alternative ground for relief, i.e., that it had not received the claim form at issue. In opposition, plaintiff submitted an affidavit by its owner demonstrating that the claim form had been mailed to defendant. Consequently, a triable issue of fact exists as to the submission of the claim form (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Lenox Hill Radiology v Great N. Ins. Co., 50 [*2]Misc 3d 142[A], 2016 NY Slip Op 50206[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.

Solomon, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: September 21, 2016

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer's affidavit made a prima facie showing of non-receipt of the claim form, but the provider owner's affidavit showing mailing raised a triable issue as to submission of the claim.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

Cited in this decision

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

Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U)) FollowedThe insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))The provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt.
Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U)) Contrasted (cf., but see)The insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address.

Cited by

A label shows how the later decision treated this one.

Pavlova v Country Wide Ins. Co. (2017 NY Slip Op 50209(U)) FollowedThe insurer's summary judgment cross motion was denied on appeal, while denial of the provider's summary judgment motion remained in place.
Charles Deng Acupuncture, P.C. v Country Wide Ins. Co. (2017 NY Slip Op 50864(U)) FollowedThe insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was denied on appeal.
Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. (2017 NY Slip Op 51102(U)) FollowedThe insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal.
Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. (2017 NY Slip Op 51103(U)) FollowedThe insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal.
Charles Deng Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 50641(U)) FollowedThe insurer failed to establish mailing of the cancellation notice required to terminate the Pennsylvania policy before the accident.

Similar decisions

Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))The provider's mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature.
Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment.
Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co. (2018 NY Slip Op 51006(U))The insurer failed to establish collateral estoppel or valid policy cancellation in support of its lack-of-coverage defense.
Island Life Chiropractic, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51824(U))The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless.
Island Life Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51465(U))The insurer was granted summary judgment because its proof established that it had issued no policy covering the loss.