September 19, 2016

Renelique v Allstate Ins. Co. (2016 NY Slip Op 51357(U))

https://www.beynensonlaw.com/case-law/renelique-v-allstate-ins-co-2016-ny-slip-op-51357u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51357(U) · 53 Misc 3d 129(A)
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

Renelique v Allstate Ins. Co., 53 Misc 3d 129(A), 2016 NY Slip Op 51357(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's affidavits failed to establish an office mailing procedure ensuring timely mailing of its denial of claim. The insurer therefore failed to demonstrate entitlement to summary judgment dismissing the provider's action for assigned no-fault benefits. The provider likewise failed to make a prima facie showing: its supporting affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the provider's motion for summary judgment denied as well.

Reported in New York Official Reports at Renelique v Allstate Ins. Co. (2016 NY Slip Op 51357(U))

[*1]

Renelique v Allstate Ins. Co.

2016 NY Slip Op 51357(U) [53 Misc 3d 129(A)]

Decided on September 19, 2016

Appellate Term, Second Department

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

As corrected in part through September 30, 2016; it will not be published in the printed Official Reports.

Decided on September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2563 Q C

Pierre Jean Jacques Renelique, as Assignee of INNIS OSWALD, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2013. 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.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant’s denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see 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 cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 19, 2016

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's affidavit failed to show that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit, so it did not establish prima facie entitlement.

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 affidavits did not sufficiently set forth a standard office practice ensuring that the denial of claim form was timely mailed, so the insurer was not entitled to 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

Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51613(U))The insurer failed to prove mailing of the IME scheduling letters and therefore failed to establish that the assignor's IMEs were properly scheduled.
Renelique v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50868(U))The insurer's affidavit established timely and proper mailing of the denial based on the assignor's IME nonappearance.
Renelique v American Tr. Ins. Co. (2015 NY Slip Op 50482(U))The provider's action was premature because timely requested verification had not all been supplied before suit began.
Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 51536(U))The insurer's summary judgment motion based on outstanding verification was denied on appeal.
Renelique v State-Wide Ins. Co. (2016 NY Slip Op 50095(U))A default declaratory judgment precludes a no-fault recovery that would impair the rights established by that judgment.