May 12, 2011

Yklik, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50868(U))

https://www.beynensonlaw.com/case-law/yklik-inc-v-geico-ins-co-2011-ny-slip-op-50868u/

Court: Appellate Term, Second Department
Decided: May 12, 2011
Citation: 2011 NY Slip Op 50868(U) · 31 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Yklik, Inc. v GEICO Ins. Co., 31 Misc 3d 143(A), 2011 NY Slip Op 50868(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 that the insurer had neither paid nor denied the claim within the required 30-day period. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. Under Insurance Law § 5106 (a), the majority found the provider's prima facie showing deficient and therefore did not examine the insurer's opposition papers. A dissent would have affirmed, finding proof of supplies, receipt of billing forms, and nonpayment sufficient to shift the burden to the insurer, whose mailing affidavit the dissent found inadequate.

Reported in New York Official Reports at Yklik, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50868(U))

[*1]

Yklik, Inc. v GEICO Ins. Co.

2011 NY Slip Op 50868(U) [31 Misc 3d 143(A)]

Decided on May 12, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through May 18, 2011; it will not be published in the printed Official Reports.

Decided on May 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-990 Q C.

Yklik, Inc. as Assignee of BELLO HORACIO, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009, deemed from a judgment of the same court entered April 7, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,723.

ORDERED that the judgment is reversed, without costs, the order granting 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, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. We deem defendant’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant’s papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., and Weston J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff’s assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.
Decision Date: May 12, 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.

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 establish its prima facie case because it did not demonstrate that the insurer had failed to pay or deny the claim within the 30-day period.

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.

Cited in this decision

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

New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602) FollowedThe insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
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.

Similar decisions

A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.
New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing.
Yklik, Inc. v Electric Ins. Co. (2012 NY Slip Op 51287(U))The provider failed to rebut peer review reports establishing that the medical supplies lacked medical necessity.
Right Aid Med. Supply Corp. v Geico Ins. Co. (2012 NY Slip Op 51717(U))The provider failed to establish entitlement to summary judgment because its submission included a facially timely denial it did not discredit.
AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))The provider failed to prove claim submission because its billing-manager affidavit contradicted the post office ledger on which it relied.