February 22, 2016

Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))

https://www.beynensonlaw.com/case-law/lenox-hill-radiology-v-great-n-ins-co-2016-ny-slip-op50206u/

Court: Appellate Term, Second Department
Decided: February 22, 2016
Citation: 2016 NY Slip Op 50206(U) · 50 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Lenox Hill Radiology v Great N. Ins. Co., 50 Misc 3d 142(A), 2016 NY Slip Op 50206(U) (App Term, 2d Dept, 9th & 10th 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 provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt. The insurer moved for summary judgment dismissing an action for assigned no-fault benefits and made a prima facie showing that it had not received the claim form. An affidavit from the mailing supervisor in the provider's attorneys' offices established mailing to the insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. It also rejected the insurer's contention that untimely submission of the claim form, by itself, entitled the insurer to summary judgment.

Reported in New York Official Reports at Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))

[*1]

Lenox Hill Radiology v Great N. Ins. Co.

2016 NY Slip Op 50206(U) [50 Misc 3d 142(A)]

Decided on February 22, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-1937 S C

Lenox Hill Radiology and Mia, P.C., Doing Business as REGENCY MEDICAL IMAGING, as Assignee of PEGGY PETTITT, Respondent,
against
Great Northern Insurance Company, Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated February 25, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion for summary judgment dismissing the complaint. While defendant made a prima facie showing that it had not received plaintiff’s claim form, the affidavit of the mailing supervisor in plaintiff’s attorneys’ offices established that the claim at issue had been mailed to defendant. Thus, 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[U], 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]; 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]). Moreover, contrary to defendant’s contention, even if plaintiff failed to submit the claim form in a timely manner, untimely submission, in and of itself does not entitle defendant to summary judgment dismissing the complaint (see e.g. SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, the order, insofar as appealed from, is affirmed.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.

Decision Date: February 22, 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 showing of non-receipt was met by the mailing supervisor's affidavit establishing that the claim was mailed, creating a triable issue as to submission of the claim form.

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.
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.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.

Cited by

Island Life Chiropractic, P.C. v Country Wide Ins. Co. (2016 NY Slip Op 51378(U))The insurer failed to prove mailing of a cancellation notice, and conflicting affidavits raised a factual issue over claim submission.
Progressive Health Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50603(U))The insurer failed to prove two IME nonappearances on one claim, and conflicting mailing evidence precluded summary judgment on another.

Similar decisions

Lenox Hill Radiology & MIA, P.C. v Great N. Ins. Co. (2015 NY Slip Op 50680(U))The provider's doctor's affirmation raised a triable issue of medical necessity in response to the insurer's peer review report.
Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co. (2013 NY Slip Op 51750(U))The provider submitted its claims more than 45 days after the services and offered no explanation for the delay.
Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51810(U))The provider's action was premature because timely verification requests remained unanswered when the action was commenced.
Lenox Hill Radiology, P.C. v Redland Ins. Co. (2012 NY Slip Op 52263(U))The insurer proved that its denial was issued in duplicate, resolving the sole issue left by its unopposed summary judgment motion.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.