December 19, 2011

WJJ Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2011 NY Slip Op 52288(U))

https://www.beynensonlaw.com/case-law/wjj-acupuncture-p-c-v-nationwide-mut-ins-co-2011-ny-slip-op52288u/

Court: Appellate Term, Second Department
Decided: December 19, 2011
Citation: 2011 NY Slip Op 52288(U) · 34 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

WJJ Acupuncture, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 127(A), 2011 NY Slip Op 52288(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 failed to establish timely mailing of its denials asserting that the provider's fees exceeded the workers' compensation fee schedule. The provider appealed the grant of summary judgment dismissing its assigned no-fault claims. The insurer's claims representative established neither actual timely mailing nor timely mailing under standard office practices and procedures sufficient to raise a presumption of mailing. That deficiency required denial of the insurer's motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment, expressly declining to reach any other issue.

Reported in New York Official Reports at WJJ Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2011 NY Slip Op 52288(U))

[*1]

WJJ Acupuncture, P.C. vNationwide Mut. Ins. Co.

2011 NY Slip Op 52288(U) [34 Misc 3d 127(A)]

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-530 K C.

WJJ Acupuncture, P.C. as Assignee of ALEXANDER JOSOWITZ, Appellant,
against
Nationwide Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), dated October 23, 2009. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit of its claims representative which established neither that the denial of claim forms, which denied the claims at issue on the ground that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule, had actually been timely mailed nor that they had been timely mailed in accordance with defendant’s standard office practices and procedures so as to give rise to the presumption of mailing (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]). Thus, defendant’s motion for summary judgment should have been denied.

In view of the foregoing, we reach no other issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 19, 2011

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

Held the claims representative's affidavit established neither actual timely mailing nor mailing under a standard office practice, so no presumption of mailing arose and the insurer's fee-schedule motion failed.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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.

Similar decisions

Natural Therapy Acupuncture, P.C. v Nationwide Ins. (2017 NY Slip Op 50943(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))The insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.
WJ Acupuncture, P.C. v Nationwide Mut. Ins. (2012 NY Slip Op 51648(U))The insurer failed to establish that the providers were parties to, or in privity with a party to, an earlier arbitration.
Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51716(U))The insurer failed to prove timely mailing of its fee schedule denials, and the provider failed to establish its prima facie case.
Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld.