October 22, 2014

Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U))

https://www.beynensonlaw.com/case-law/urban-well-acupuncture-p-c-v-american-commerce-ins-co-2014-ny-slipop-51520u/

Court: Appellate Term, First Department
Decided: October 22, 2014
Citation: 2014 NY Slip Op 51520(U) · 45 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Urban Well Acupuncture, P.C. v American Commerce Ins. Co., 45 Misc 3d 128(A), 2014 NY Slip Op 51520(U) (App Term, 1st Dept 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 insurer failed to prove mailing of its denial through an affidavit describing a nonparty insurer's mailing practices. The affiant, identified as the nonparty's mailroom representative, neither stated that the denial was actually mailed to the provider nor described the defendant insurer's office mailing procedures. The moving papers also showed no jural relationship between the insurer and the nonparty. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied its motion, and reinstated the complaint. The court expressly left open whether purported mailing to the individual treating acupuncturist rather than the employing professional corporation was proper under 11 NYCRR 65-3.8 (c).

Reported in New York Official Reports at Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U))

[*1]

Urban Well Acupuncture, P.C. v American Commerce Ins. Co.

2014 NY Slip Op 51520(U) [45 Misc 3d 128(A)]

Decided on October 22, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570167/14

Urban Well Acupuncture, P.C., a/a/o Manuel Lora, Plaintiff-Appellant, –
against
American Commerce Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered February 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: October 22, 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.

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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to prove mailing of its denial because a nonparty's mailroom representative neither stated she mailed it nor described the insurer's own mailing practice, and no jural relationship was shown.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 23 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235) FollowedThe insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Mercury Cas. Co. v Encare, Inc. (2011 NY Slip Op 08969)An insurer cannot avoid preclusion of a fee-schedule defense by treating excessive fees as a lack of coverage.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.

Similar decisions

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))The insurer established timely denials and proper fee schedule calculations for the provider's acupuncture claims.
Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U))The insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.
Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2016 NY Slip Op 50906(U))The insurer established proper, timely mailing of IME notices and the assignor's repeated nonappearance.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.