June 28, 2011

Lifex Med. Care, P.C. v Safeco Natl. Ins. Co. (2011 NY Slip Op 51221(U))

https://www.beynensonlaw.com/case-law/lifex-med-care-p-c-v-safeco-natl-ins-co-2011-ny-slip-op-51221u/

Court: Appellate Term, Second Department
Decided: June 28, 2011
Citation: 2011 NY Slip Op 51221(U) · 32 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
Issues: Provider's prima facie case Timeliness and preclusion Policy issues
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126(A), 2011 NY Slip Op 51221(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 provider failed to establish summary judgment entitlement, and the insurer's fraudulent-procurement defense lacked admissible proof. For five claims, the provider proved nonpayment but not that the denials were legally insufficient. For two others, the insurer's mailing affidavit defeated the provider's assertion that it had not received denials. The insurer's cross motion also failed: the assignor's EUO transcript was unsigned and uncertified, and an out-of-state affidavit lacked the certificate of conformity required by CPLR 2309 (c) and Real Property Law § 299-a (1). The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting the provider summary judgment, and denied that motion, leaving undisturbed the implicit denial of the insurer's cross motion.

Reported in New York Official Reports at Lifex Med. Care, P.C. v Safeco Natl. Ins. Co. (2011 NY Slip Op 51221(U))

[*1]

Lifex Med. Care, P.C. v Safeco Natl. Ins. Co.

2011 NY Slip Op 51221(U) [32 Misc 3d 126(A)]

Decided on June 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., GOLIA and RIOS, JJ
2010-54 Q C.

Lifex Medical Care, P.C. as Assignee of PRISCILLA WELLS, Respondent,
against
Safeco National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 25, 2009, deemed from a judgment of the same court entered December 2, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 25, 2009 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,665.13.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage due to fraudulent procurement of the insurance policy. The Civil Court granted plaintiff’s motion and implicitly denied defendant’s cross motion. A judgment was subsequently entered, from which we deem defendant’s appeal to be taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff demonstrated that defendant had not paid plaintiff’s claims. However, with respect to the claims seeking reimbursement in the amounts of $182.18, $892.72, $463.44, $202.80 and $270.40, plaintiff failed to show that the basis for defendant’s denials of these claims was conclusory, vague or had no merit as a matter of law. As a result, plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on these claims, [*2]and it is not necessary for this court to consider defendant’s opposition papers with respect thereto (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). While plaintiff asserted that it had not received NF-10 forms denying claims in the amounts of $230.09 and $2,423.50, the affidavit of defendant’s claims examiner, which established the timely mailing of these two denial of claim forms (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]), was sufficient to demonstrate that plaintiff was not entitled to summary judgment on these two claims (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, plaintiff’s motion for summary judgment should have been denied.

However, the Civil Court properly declined to grant defendant’s cross motion for summary judgment dismissing the complaint, since defendant did not submit sufficient evidence in admissible form to establish its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff correctly argues, as it did in the Civil Court, that the transcript of plaintiff’s assignor’s testimony at her examination under oath was not competent evidence as the transcript was neither signed by the witness nor certified by the court reporter (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]; cf. Zalot v Zieba, 81 AD3d 935 [2011]). Furthermore, defendant proffered various documents which were supported by an affidavit that was notarized in the State of Indiana, but, as plaintiff properly noted in opposition to the cross motion, the affidavit was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1) (see Citibank, [S.D.] N.A. v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied. We leave undisturbed the Civil Court’s implicit denial of defendant’s cross motion for summary judgment dismissing the complaint.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 28, 2011

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 that proof of nonpayment was not enough: the provider failed to show the grounds of the insurer's denials of five claims were conclusory, vague or meritless, and timely mailed denials defeated two others.

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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the claims examiner's affidavit established timely mailing of two denial forms despite the provider's assertion of non-receipt, so the provider was not entitled to summary judgment on those claims.

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, 809 (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.
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.

Cited by

A label shows how the later decision treated this one.

City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U)) Contrasted (cf., but see)The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript.
Tam Med. Supply Corp. v Omni Indem. Co. (2015 NY Slip Op 51294(U)) FollowedThe provider's new deposition evidence failed to defeat the insurer's showing that it had not issued the policy covering the accident.
Integon Natl. Ins. Co. v Salazar-Ochoa (2026 NY Slip Op 50292(U))An insurer need not provide coverage for an intentionally caused collision, even to innocent third parties.

Similar decisions

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.
Bath Med. Supply, Inc. v Allstate Indem. Co. (2010 NY Slip Op 20059)The insurer failed to justify discovery or preserve fraudulent-billing and EUO nonappearance defenses through proof of timely denials.
Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2015 NY Slip Op 51272(U))The provider established entitlement to payment where the insurer neither paid nor denied within 30 days and failed to prove tolling.
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.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.