December 17, 2014

Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. (2014 NY Slip Op 51807(U))

https://www.beynensonlaw.com/case-law/optimal-well-being-chiropractic-p-c-v-chubb-indem-ins-co-2014-nyslip-op-51807u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51807(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co., 2014 NY Slip Op 51807(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 evidentiary preclusion did not warrant dismissal because the insurer's denials admitted receipt of the bills. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion and affirmed denial of the insurer's cross motion. The provider failed to establish untimely payment or denial, or a timely denial that was conclusory, vague or legally meritless, under Insurance Law § 5106 (a). The insurer argued that a so-ordered discovery stipulation barring the bills and the provider's own documentary proof of submission prevented recovery at trial. But the trial burden required proof of submission, and the denials admitted receipt. The insurer therefore did not establish that the provider would be unable to prove its right to recover.

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. (2014 NY Slip Op 51807(U))

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

Optimal Well-being Chiropractic, P.C. as Assignee of PRINCE JOHNSON, Respondent,
against
Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 29, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for

summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant correctly argues on appeal that plaintiff’s motion should not have been granted, as plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period, or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]).

Defendant’s only argument on appeal with respect to its cross motion is, in essence, that the complaint should have been dismissed on the ground that plaintiff will not be able to demonstrate its right to recover at trial because plaintiff is precluded, pursuant to a prior so-ordered discovery stipulation, from offering, among other things, the bills or its own documentary proof of the submission of those bills. At a trial, a no-fault plaintiff’s prima facie burden is to demonstrate proof of the submission to the defendant of the claim forms at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33; Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 44 Misc 3d 131[A], 2013 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As the record demonstrates that the bills at issue were denied, and as the denials admit receipt of the bills (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), [*2]defendant has not shown that plaintiff will not be able to establish its right to recover at trial. Therefore, defendant has not established a basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

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

Decision Date: December 17, 2014

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's motion should have been denied because its moving papers did not establish that the claim was not paid or denied within 30 days 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

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.
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.
Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 52322(U))A provider that proves its claim at trial need not also show that the insurer has no meritorious defense.
East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U))The insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496)A provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.

Cited by

A label shows how the later decision treated this one.

AR Med. Rehabilitation, P.C. v State-Wide Ins. Co. (2015 NY Slip Op 50631(U)) FollowedA provider may prove submission and receipt of no-fault claims at trial through the insurer's witness and denial forms.

Similar decisions

Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U))The provider's proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims.
Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))The insurer failed to prove the provider's EUO nonappearances through someone with personal knowledge.
Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co. (2014 NY Slip Op 51233(U))The insurer failed to establish that its IME nonappearance and services-not-rendered defenses were free from preclusion.
Island Chiropractic Testing, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51795(U))The provider's verification responses presented a factual dispute that precluded summary judgment for either party.
Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.