November 15, 2012

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U))

https://www.beynensonlaw.com/case-law/diagnostic-chiropractic-specialities-p-c-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op-52114u/

Court: Appellate Term, First Department
Decided: November 15, 2012
Citation: 2012 NY Slip Op 52114(U) · 37 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co., 37 Misc 3d 135(A), 2012 NY Slip Op 52114(U) (App Term, 1st Dept 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.

The provider's action was premature because it commenced less than 30 days after service of the claim at issue. The insurer established that the applicable payment period had not elapsed under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. The provider's assertion that it mailed a claim a year earlier did not raise a triable issue because that earlier claim concerned services rendered on a different date. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in its entirety, and dismissed the complaint.

Reported in New York Official Reports at Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U))

[*1]

Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 52114(U) [37 Misc 3d 135(A)]

Decided on November 15, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
.

Diagnostic Chiropractic Specialities, P.C. a/a/o Seymore Newman, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Ins. Co., Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 10, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 10, 2012, insofar as appealed from, reversed, without costs, defendant’s motion granted in its entirety and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The evidentiary proof submitted by defendant established, prima facie, that this action for assigned first-party no-fault benefits was premature, since it was commenced less than 30 days after plaintiff’s March 11, 2011 service of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007]). In opposition, plaintiff’s assertion that it mailed the claim to defendant in March 2010 was insufficient to raise a triable issue, since the record shows that the March 2010 claim related to services that were rendered on a date different than that set forth in the claim at issue in the case at bar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 15, 2012

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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response

Held the provider's assertion that it mailed the claim earlier failed to raise a triable issue because the earlier claim covered services on a different date than the claim sued on.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 9 (this one included) are in the same category.

Cited in this decision

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

Mount Sinai Hosp. v Chubb Group of Ins. Cos. (2007 NY Slip Op 06650) FollowedThe hospital's action was premature because it sued approximately two months before the insurer's time to pay or deny expired.

Similar decisions

Northshore Chiropractic Diagnostics, P.C. v A. Cent. Ins. Co. (2014 NY Slip Op 51825(U))The insurer's verification requests were timely, but a factual issue remained as to whether the provider adequately responded.
D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U))The insurer's verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature.
New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.
Lefferts Gardens Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 50599(U))The provider's action was premature because it failed to respond to the insurer's timely and proper verification requests.
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.