May 19, 2015

Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))

https://www.beynensonlaw.com/case-law/bay-ls-med-supplies-inc-v-allstate-ins-co-2015-ny-slip-op50802u/

Court: Appellate Term, Second Department
Decided: May 19, 2015
Citation: 2015 NY Slip Op 50802(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Bay Ls Med. Supplies, Inc. v Allstate Ins. Co., 2015 NY Slip Op 50802(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 failed to establish that its claim was not timely denied or that a timely denial was legally deficient. The provider obtained summary judgment and a judgment for assigned no-fault benefits in Civil Court, Queens County. Under CPLR 5512 (a), the Appellate Term, Second Department, treated the insurer's appeal from the order as an appeal from the judgment. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the provider's failure to establish an untimely denial or a timely denial that was conclusory, vague or meritless defeated its prima facie showing. The court reversed the judgment, vacated the order and denied the provider's motion, but declined reverse summary judgment for the insurer.

Reported in New York Official Reports at Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))

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

Bay LS Medical Supplies, Inc. as Assignee of MATIAS RAMOS, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 5, 2012, deemed from a judgment of the same court entered November 1, 2012 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 5, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $930.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered September 5, 2012, the Civil Court granted plaintiff’s motion. A judgment awarding plaintiff the principal sum of $930 was entered on November 1, 2012. Defendant’s subsequently filed notice of appeal from the September 5, 2012 order is deemed to be a notice of appeal from the judgment entered November 1, 2012 (see CPLR 5512 [a]).

Defendant correctly argues on appeal that plaintiff did not make a prima facie showing of entitlement to summary judgment, as plaintiff failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Contrary to defendant’s further argument on appeal, reverse summary judgment is not appropriate in this case (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the judgment is reversed, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Decision Date: May 19, 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.

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 failed to make a prima facie showing because it did not establish the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

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.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U)) FollowedThe insurer's summary judgment award was vacated because medical necessity was not an issue raised by the provider's motion.

Similar decisions

Parkview Med. & Surgical, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50400(U))The provider's proof of mailing and nonpayment did not establish an untimely denial or a timely denial lacking legal merit.
Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51410(U))Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.