April 30, 2014

EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-geico-ins-co-2014-ny-slip-op50786u/

Court: Appellate Term, Second Department
Decided: April 30, 2014
Citation: 2014 NY Slip Op 50786(U) · 43 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 20 later decisions (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139(A), 2014 NY Slip Op 50786(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's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them. After denying the provider summary judgment, the Civil Court made CPLR 3212 (g) findings in its favor and limited trial to medical necessity. The insurer failed to establish a basis to strike those findings. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., a business-records foundation was unnecessary. The order's direction for trial also showed that it did not conclusively establish that the denials were untimely, conclusory, vague, or legally meritless. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's favorable findings.

Reported in New York Official Reports at EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))

[*1]

EMC Health Prods., Inc. v Geico Ins. Co.

2014 NY Slip Op 50786(U) [43 Misc 3d 139(A)]

Decided on April 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1208 K C

EMC Health Products, Inc. as Assignee of BRIAN BYERS, Respondent,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 13, 2012. The order, insofar as appealed from and as limited by the brief, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, limiting the issues for trial to medical necessity.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (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]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). Defendant also argues, in effect, that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or were conclusory, vague, or without merit as a matter of law (see 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]). However, this is an incorrect reading of the order (see Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52010[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Had the court found, for example, that plaintiff had established that it was incontrovertible, for all purposes in the action, that defendant’s denials were without merit as a matter of law, the court would have granted summary judgment to plaintiff. Instead, the order directed that a trial be held. Consequently, regardless of the wording of the order, it is clear that it was not the court’s intent to find that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or were conclusory, vague, or without merit as a matter of law.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: April 30, 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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Upheld CPLR 3212(g) findings for the provider because the insurer's denials admitted receipt of the bills and the provider did not need a CPLR 4518 foundation for them, leaving only medical necessity for trial.

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, 513 (this one included) are in the same category.

Cited in this decision

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

East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe 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) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
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.
Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co. (2013 NY Slip Op 52010(U)) FollowedThe insurer's unrebutted peer review established lack of medical necessity for nerve testing, but its later IME did not address other testing.

Cited by (24)

A label shows how the later decision treated this one.

Parisien v Travelers Ins. Co. (2019 NY Slip Op 51895(U)) FollowedConflicting proof of claim mailing and receipt precluded summary judgment and conclusive findings in the provider's favor.
Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U)) FollowedThe insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed.
Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U)) FollowedThe insurer failed to establish that policy limits were exhausted when the provider's claim became complete.
AR Med. Rehabilitation v State-Wide Ins. Co. (2015 NY Slip Op 25287) FollowedA provider may use the insurer's NF-10 denial as an admission of claim receipt without a business-record foundation.
MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50863(U)) FollowedConflicting affidavits about the examiners' locations prevented summary judgment on the assignors' alleged IME nonappearance.
Delta Diagnostic Radiology, P.C. v Hertz Co. (2015 NY Slip Op 51242(U)) FollowedA factual dispute over the address used for IME scheduling letters defeated the insurer's cross motion for summary judgment.
Bernhard J. Sengstock, D.C., P.C. v GEICO (2014 NY Slip Op 51266(U)) FollowedThe insurer's summary judgment cross motion was denied because medical necessity presented a triable issue of fact.
ZZ Acupuncture, P.C. v Kemper Ins. Co. (2024 NY Slip Op 51205(U)) FollowedA no-fault claim accrues 30 days after the insurer receives it, absent tolling or proof that the claimant received an earlier denial.
Ortho Prods. & Equip., Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 51263(U)) FollowedThe insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal.
Ortho Prods. & Equipments, Inc. v Geico Gen. Ins. Co. (2014 NY Slip Op 51269(U)) FollowedThe insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal.

Show all 24 citing decisions

Similar decisions

New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing.
Promed Durable Equip., Inc. v Geico Ins. (2014 NY Slip Op 50771(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))A provider's prima facie case does not require proof that supplies were actually delivered to the assignor or identification of who delivered them.