May 14, 2013

Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U))

https://www.beynensonlaw.com/case-law/urban-radiology-p-c-v-geico-gen-ins-co-2013-ny-slip-op50850u/

Court: Appellate Term, Second Department
Decided: May 14, 2013
Citation: 2013 NY Slip Op 50850(U) · 39 Misc 3d 146(A)
Posture: Trial
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Assignments and standing Provider's prima facie case Trial and evidence
Legal questions: Claimant's prima facie case at trial · Challenging the assignment of benefits (see the maps)

Cite as

Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146(A), 2013 NY Slip Op 50850(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 waived its assignment defense by failing to timely object to incomplete claim forms or seek verification of a valid assignment. At a nonjury trial, the provider presented its prima facie case, and the insurer offered no defense. The Civil Court nevertheless dismissed because no assignment was admitted. The Appellate Term, Second Department, reversed, explaining that the assignment objection was waived. Unlike a summary judgment movant under CPLR 3212 (b), a provider at trial need not establish the absence of a defense; the insurer must prove a meritorious, unprecluded defense. The matter was remitted for judgment for the provider, including statutory interest and attorney fees under Insurance Law § 5106 (a).

Reported in New York Official Reports at Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U))

[*1]

Urban Radiology, P.C. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50850(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-1241 K C.

Urban Radiology, P.C. as Assignee of STANISLAV ALTMAN, Appellant, —
against
GEICO General Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered May 10, 2010. 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 $2,063.10, plus statutory interest and attorney’s fees.

After plaintiff presented its prima facie case at the trial of this action by a provider to recover assigned first-party no-fault benefits, defendant offered no defense, but relied upon the record. The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).

Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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

Held the provider made out its prima facie case at trial without offering an assignment of benefits, because the insurer waived that defense by not objecting to the claim forms or seeking verification, and need not negate defenses at trial.

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.

Challenging the assignment of benefits

Open the full map

Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground

Held the trial court erred in dismissing for lack of an assignment in evidence because, although the claim forms contained no assignment language, the insurer never timely objected to the forms' completeness or sought verification of the assignment, waiving the defense.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.

Cited in this decision

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

Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067) FollowedAn insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) FollowedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.

Cited by

A label shows how the later decision treated this one.

V.S. Med. Servs., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51760(U)) FollowedThe provider proved its unpaid claims at trial, but statutory interest was stayed for approximately three years of failure to prosecute.
Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 52322(U)) FollowedA provider that proves its claim at trial need not also show that the insurer has no meritorious defense.
Beal-Medea Prods., Inc. v Geico Gen. Ins. Co. (2016 NY Slip Op 50594(U)) FollowedA no-fault provider need not submit an executed assignment of benefits to establish prima facie entitlement to recovery.
MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))EUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply.
New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U))A provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.

Similar decisions

Damadian MRI in Canarsie, P.C. v General Assur. Co. (2006 NY Slip Op 51048(U))The insurer waived defenses concerning assignment forms by failing to object timely to their completeness or seek verification.
Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))The insurer established mailing of the IME notices and the assignor's nonappearance, warranting summary judgment dismissing the provider's claims.
Complete Radiology, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50419(U))The treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment.
Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
Urban Radiology, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 50601(U))The insurer failed to establish mailing of the EUO requests because its attorney's affirmation did not describe the law office's mailing procedures.