May 22, 2014

Bronze Acupuncture, P.C. v Travelers Ins. Co. (2014 NY Slip Op 50873(U))

https://www.beynensonlaw.com/case-law/bronze-acupuncture-p-c-v-travelers-ins-co-2014-ny-slip-op50873u/

Court: Appellate Term, Second Department
Decided: May 22, 2014
Citation: 2014 NY Slip Op 50873(U) · 43 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Bronze Acupuncture, P.C. v Travelers Ins. Co., 43 Misc 3d 143(A), 2014 NY Slip Op 50873(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 insurer established that the policy's $200 deductible applied to the provider's claims and that its denials were timely mailed. Affidavits proved the deductible under 11 NYCRR 65-1.6 and denial of the disputed amounts on that basis under Insurance Law § 5102 (b) (3). The provider waived its CPLR 2309 (c) objection by first raising it on appeal. In any event, the deductible affidavit was notarized in New York, and the out-of-state mailing affidavit included a proper certificate of conformity. The Appellate Term, Second Department, reversed the order granting the provider summary judgment, denied that motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bronze Acupuncture, P.C. v Travelers Ins. Co. (2014 NY Slip Op 50873(U))

[*1]

Bronze Acupuncture, P.C. v Travelers Ins. Co.

2014 NY Slip Op 50873(U) [43 Misc 3d 143(A)]

Decided on May 22, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-110 K C

Bronze Acupuncture, P.C. as Assignee of DAWN BARRINGTON, Respondent,
against
Travelers Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 29, 2009. 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 reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover on a bill for $172.81 and the $27.19 balance of a bill for $55.69. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. At issue is defendant’s application of a $200 deductible to the claims in question.

The affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6), and that defendant had denied the claims at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Plaintiff’s contention that defendant improperly based its motion upon an out-of-state affidavit that was not in compliance with CPLR 2309 (c) was improperly raised for the first time on appeal and, thus, was waived (see Talley v Peck, 23 Misc 3d 141[A], 2009 NY Slip Op 51028[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In any event, defendant’s affidavit which alleged facts concerning the applicability of the deductible was notarized in New York State, and the out-of-state affidavit establishing the proper mailing of the denial of claim forms was accompanied by a proper certificate of conformity (see CPLR 2309 [c]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's affidavits sufficiently established timely mailing of the denials, noting the out-of-state mailing affidavit carried a proper certificate of conformity, while the dispute centered on the policy deductible.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Innovative Chiropractic, P.C. v Progressive Ins. Co. (2010 NY Slip Op 50148(U)) FollowedThe insurer established a policy deductible but failed to support its duplicative-billing defense to a separate bill.

Similar decisions

Bronze Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51219(U))The insurer established lack of medical necessity, and the treating acupuncturist's unsupported disagreement failed to raise a factual issue.
Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))The provider failed to establish claim submission because it proved neither actual mailing nor a reliable office mailing practice.
AIM Acupuncture, P.C. v Travelers Ins. Co. (2012 NY Slip Op 51773(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.