September 16, 2015

Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U))

https://www.beynensonlaw.com/case-law/advanced-chiropractic-of-ny-p-c-v-chubb-indem-ins-co-2015-ny-slipop-51409u/

Court: Appellate Term, Second Department
Decided: September 16, 2015
Citation: 2015 NY Slip Op 51409(U) · 49 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Proof of mailing (see the maps)

Cite as

Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co., 49 Misc 3d 129(A), 2015 NY Slip Op 51409(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion dismissing the complaint for assigned no-fault benefits. The claims adjuster's affidavit sufficiently established nonreceipt, but the provider's billing manager demonstrated that the claim forms had been mailed to the insurer. Those competing affidavits created a triable issue as to whether the insurer's time to pay or deny the claims had ever begun to run, precluding summary judgment.

Reported in New York Official Reports at Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U))

[*1]

Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co.

2015 NY Slip Op 51409(U) [49 Misc 3d 129(A)]

Decided on September 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015

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

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1125 K C

Advanced Chiropractic of New York, P.C. as Assignee of Marvins Laguerre, Respondent,
against
Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered January 16, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

The affidavit by defendant’s claims adjuster was sufficient to establish that defendant did not receive the claims at issue. However, as the affidavit by plaintiff’s billing manager demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claims ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; 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, 11th & 13th Jud Dists 2013]). Consequently, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decision Date: September 16, 2015

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 adjuster established non-receipt of the claims, but the provider's billing manager affidavit showed they were mailed, creating an issue of fact whether the time to pay or deny began.

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.

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.

Similar decisions

Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. (2014 NY Slip Op 51807(U))The provider's evidentiary preclusion did not warrant dismissal because the insurer's denials admitted receipt of the bills.
BLR Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51770(U))The insurer's litigation examiner established timely mailing of the denial based on the assignor's failure to attend EUOs. Civil Court denied both sides' summary judgment motions, finding that the provider established its prima facie case and that the assignor failed to attend properly scheduled EUOs, but leaving denial timeliness for trial.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))The provider's owner affidavit raised a triable issue about timely submission of the claim despite the insurer's evidence of nonreceipt.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))The insurer established proper mailing of IME scheduling letters and denial forms, as well as the assignor's nonappearance.