March 17, 2015

Parkview Med. & Surgical, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50400(U))

https://www.beynensonlaw.com/case-law/parkview-med-surgical-p-c-v-allstate-ins-co-2015-ny-slip-op50400u/

Court: Appellate Term, Second Department
Decided: March 17, 2015
Citation: 2015 NY Slip Op 50400(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

Parkview Med. & Surgical, P.C. v Allstate Ins. Co., 2015 NY Slip Op 50400(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 and nonpayment did not establish an untimely denial or a timely denial lacking legal merit. Its owner's affidavit showed that claim forms were mailed and payment was not made within 30 days, but did not address whether the insurer timely denied them or issued conclusory, vague or legally meritless denials. The provider therefore failed its initial summary judgment burden under Insurance Law § 5106 (a) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. Independently, the insurer's litigation examiner's affidavit and complete denials raised a triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order and denied the provider's summary judgment motion.

Reported in New York Official Reports at Parkview Med. & Surgical, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50400(U))

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

Parkview Medical & Surgical, P.C., as Assignee of RALPH ALLISON, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 30, 2012, deemed from a judgment of the same court entered June 25, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 30, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,358.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or which issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (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, 11th & 13th Jud Dists 2011]).

While the supporting affidavit by plaintiff’s owner established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment should have been denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33). In any event, the affidavit by defendant’s litigation examiner and the attached complete copies of the denial of claim submitted in opposition to plaintiff’s motion were sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the judgment is reversed, the order entered May 30, 2012 is vacated, and plaintiff’s motion for summary judgment is denied.

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

Decision Date: March 17, 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 owner's affidavit proved mailing and nonpayment within 30 days but not that the claims were not denied within 30 days or that timely denials were 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) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
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.
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.

Similar decisions

Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U))The provider failed to establish that its claim was not timely denied or that a timely denial was legally deficient.
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.
Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.
PFJ Med. Care, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50361(U))The provider's affidavit raised a factual issue whether requested verification had been mailed to and received by the insurer.