December 21, 2012

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))

https://www.beynensonlaw.com/case-law/brooklyn-hgts-physical-therapy-p-c-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op-52398u/

Court: Appellate Term, Second Department
Decided: December 21, 2012
Citation: 2012 NY Slip Op 52398(U) · 38 Misc 3d 129(A)
Posture: Summary judgment
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 129(A), 2012 NY Slip Op 52398(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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.

Neither party established entitlement to summary judgment on the claims reviewed after reargument. The insurer's litigation examiner affidavit failed to establish timely mailing of the denial forms, defeating its motion to dismiss the complaint. The provider likewise failed to show untimely denials or denials that were conclusory, vague, or without merit as a matter of law, as required for its prima facie showing under Insurance Law § 5106 (a). The Appellate Term, Second Department, dismissed the appeal from the superseded original order and modified the reargument order, insofar as reviewed, to deny the provider's cross motion on the first four causes of action. Denial of the insurer's summary judgment motion remained in place.

Reported in New York Official Reports at Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))

[*1]

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 52398(U) [38 Misc 3d 129(A)]

Decided on December 21, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1887 K C.

against
Brooklyn Heights Physical Therapy, P.C. as Assignee of RAYMOND BONE, Respondent, New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 24, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. The appeal from the order entered September 24, 2009 brings up for review so much of an order of the same court entered September 2, 2010 as, upon granting the branch of defendant’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint and plaintiff’s prior cross motion for summary judgment, adhered to the portions of the prior order which denied defendant’s prior motion and granted the branches of plaintiff’s prior cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 (see CPLR 5517 [b]).

ORDERED that the appeal from the order entered September 24, 2009 is dismissed, as that order was superseded by the order entered September 2, 2010, made upon reargument; and it is further,

ORDERED that the order entered September 2, 2010, insofar as reviewed, is modified by [*2]providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied; as so modified, the order entered September 2, 2010, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits and asserted seven causes of action seeking to recover upon claims for $1,180, $550.44, $780.98, $489.28, $305.80, $183.48, and $122.32, respectively. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court, by order entered September 24, 2009, denied defendant’s motion and granted plaintiff’s cross motion. Thereafter, defendant moved for leave to reargue. By order entered September 2, 2010, the Civil Court granted reargument and, upon reargument, adhered to so much of the prior order as denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28.

The affidavit of defendant’s litigation examiner was insufficient to establish timely mailing of the NF-10 denial of claim forms at issue (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]). Consequently, defendant failed to establish its entitlement to summary judgment dismissing the complaint.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Avenue T MPC Corp. v Auto One Ins. Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as plaintiff failed to demonstrate that defendant had untimely denied the claims or that defendant had issued NF-10 denial of claim forms which were conclusory, vague or without merit as a matter of law, plaintiff failed to established its prima facie entitlement to summary judgment with respect to its claims for $1,180, $550.44, $780.98, and $489.28.

Accordingly, the order entered September 2, 2010, insofar as reviewed, is modified by providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: December 21, 2012

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 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: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to show the claims were untimely denied or that the denials were conclusory, vague or without merit, so its cross motion should have been denied.

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

Held the litigation examiner's affidavit insufficient to establish timely mailing of the denials, so the insurer was not entitled to summary judgment.

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, 260 (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.
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.

Similar decisions

Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50594(U))The provider's claims failed in part for outstanding verification and duplicate billing, while separate reimbursement remained disputed.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))The provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action.