February 28, 2014

Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 50343(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-allstate-ins-co-2014-ny-slip-op50343u/

Court: Appellate Term, Second Department
Decided: February 28, 2014
Citation: 2014 NY Slip Op 50343(U) · 42 Misc 3d 145(A)
Posture: Trial
Outcome: Provider prevailed
Later treatment: Limited in 1 and followed in 1 later decisions (see Cited by)
Issues: Trial and evidence Provider's prima facie case
Legal questions: Claimant's prima facie case at trial · Proof of mailing (see the maps)

Cite as

Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145(A), 2014 NY Slip Op 50343(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.

A provider may use an insurer's denial as an admission that the insurer received the claim referenced in it. At a nonjury trial, the provider authenticated the NF-10 as the denial received from the insurer, but the Civil Court excluded it and dismissed for failure to establish a prima facie case. The denial was offered as the insurer's admission of receipt, not as the provider's business record under CPLR 4518 (a). The provider also proved nonpayment, and the insurer consented to admission of the claim form. The Appellate Term, Second Department, reversed and remitted for judgment for the provider, with statutory interest and attorney fees under Insurance Law § 5106 (a) and the implementing regulations.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 50343(U))

[*1]

Eagle Surgical Supply, Inc. v Allstate Ins. Co.

2014 NY Slip Op 50343(U) [42 Misc 3d 145(A)]

Decided on February 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014

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

PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-1282 K C.

Eagle Surgical Supply, Inc. as Assignee of JACQUELINE THOMPSON, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, at which plaintiff’s witness was the sole witness. Plaintiff attempted to move into evidence certain documents, including an NF-10 denial of claim
form and a mailing log. The court, however, refused to admit those documents and, after trial, dismissed the complaint on the ground that plaintiff had failed to establish a prima facie case.

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (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]). In such a case, a plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received. Consequently, plaintiff’s attempt to use the denial to prove the submission of the claim form was improperly denied. As plaintiff proved that defendant had not paid the claim and as defendant consented to the admission into evidence of plaintiff’s claim form, judgment should have been awarded to plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

Legal questions (2)

Questions 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 at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case

Reversing a trial dismissal, held the insurer's denial form was admissible as its admission of receipt, not as the provider's business record, so with proof of nonpayment the provider established its case.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.

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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response

Held the provider could prove submission of its claim form through the insurer's own denial referencing that claim, offered as the insurer's admission of receipt rather than the provider's business record.

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

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (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.

Cited by

A label shows how the later decision treated this one.

Jiang Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50945(U)) LimitedThe insurer's IME no-show defense failed because the examinations were not timely scheduled under 11 NYCRR 65-3.5 (d).
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.

Similar decisions

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
Eagle Surgical Supply, Inc. v Allstate Indem. Co. (2013 NY Slip Op 52012(U))The insurer's EUO request was nine days late, but its denial remained timely within the resulting 21-day period.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51538(U))The insurer's IME report established lack of medical necessity for one supply claim, but its peer review did not establish that defense for another.
Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))The insurer failed to establish timely mailing of its denial and that its medical necessity defense was not precluded.