June 27, 2012
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))
https://www.beynensonlaw.com/case-law/br-clinton-chiropractic-p-c-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op51270u/
- Decided
- June 27, 2012
- Citation
- 2012 NY Slip Op 51270(U) · 36 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Split result
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.
Reported in New York Official Reports at BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))
| BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2012 NY Slip Op 51270(U) [36 Misc 3d 129(A)] |
| Decided on June 27, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2852 K C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 17, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered September 13, 2010 awarding plaintiff the principal sum of $3,328.90 (see CPLR 5501 [c]).
ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was [*2]subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).
The affidavit submitted by plaintiff’s billing supervisor was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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]; 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment upon its first through fifth causes of action (see Westchester Med. Ctr., 78 AD3d 1168).
Defendant’s cross motion for summary judgment was properly denied. Defendant failed to establish that the initial verification and follow-up verification requests were timely mailed to plaintiff’s assignor (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]). Since defendant did not prove that the 30-day claim determination period was tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear at an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 27, 2012
Legal questions (3)
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer, having not proved the verification requests were timely mailed so as to toll the 30 days, failed to show its denials were timely and thus that its IME no-show defense was not precluded.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
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 billing supervisor's affidavit failed to show the claims were not paid or denied within 30 days or that timely denials were conclusory, vague or without merit, so the provider's motion was denied.
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.
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 insurer failed to establish timely mailing of its initial and follow-up verification requests to the assignor, so tolling was not shown and its IME denials were not shown timely.
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.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe 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)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
- 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.
- Infinity Health Prods., Ltd. v Progressive Ins. Co. (2010 NY Slip Op 51334(U)) FollowedThe insurer failed to prove timely mailing of EUO notices and therefore failed to avoid preclusion of its assignor-nonappearance defense.
Similar decisions
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
- BLR Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51770(U))The insurer's litigation examiner established timely mailing of the denial based on the assignor's failure to attend EUOs. Civil Court denied both sides' summary judgment motions, finding that the provider established its prima facie case and that the assignor failed to attend properly scheduled EUOs, but leaving denial timeliness for trial.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- 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.
- Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.