December 1, 2009

Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52445(U))

https://www.beynensonlaw.com/case-law/points-of-health-acupuncture-p-c-v-geico-ins-co-2009-ny-slip-op52445u/

Court: Appellate Term, Second Department
Decided: December 1, 2009
Citation: 2009 NY Slip Op 52445(U) · 25 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140(A), 2009 NY Slip Op 52445(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 prove timely denial because its representative began employment after the alleged mailing and supplied no other mailing proof. The Appellate Term, Second Department, affirmed summary judgment for the provider. The billing supervisor's affidavit established admissibility of the provider's documents under CPLR 4518. The insurer's representative began working for it after the denials allegedly were mailed, and the insurer otherwise established neither actual mailing nor the standard office mailing procedures used during the pertinent period. Without proof of timely denials, the insurer was precluded from asserting lack of medical necessity under Presbyterian Hosp. in City of NY v Maryland Cas. Co.

Reported in New York Official Reports at Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52445(U))

[*1]

Points of Health Acupuncture, P.C. v GEICO Ins. Co.

2009 NY Slip Op 52445(U) [25 Misc 3d 140(A)]

Decided on December 1, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1807 K C.

Points of Health Acupuncture, P.C. a/a/o ELIZABETH CARABALLO, Respondent, – –
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered July 11, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

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.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s supervisor of medical billing in support of the motion was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, as the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish actual mailing of the denial of claim forms or its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, as defendant was precluded from interposing its
defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court properly granted plaintiff’s motion for summary judgment. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

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: Claimant's proof held to make out its prima facie case

Rejected the insurer's challenge, holding the billing supervisor's affidavit established that the documents annexed to the motion were admissible under CPLR 4518.

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, 513 (this one included) are in the same category.

Proof of mailing

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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 prove timely mailing of its denials because its claim representative began working after the alleged mailing and it proved neither actual mailing nor its standard mailing practice then.

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, 260 (this one included) are in the same category.

Cited in this decision

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

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
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.

South Nassau Orthopedic Surgery and Sports Medicine, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51300(U)) FollowedThe insurer failed to establish timely denial mailing because its affidavit did not prove mailing practices during the relevant period.
Atlantic Radiology, P.C. v Maya Assur. Co. (2016 NY Slip Op 50316(U)) FollowedThe insurer failed to prove timely denial mailing because its adjuster's affidavit contradicted the stated employment timeline.
Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51770(U))The insurer failed to prove timely denials through a representative who began work after the alleged mailings or through other mailing evidence.
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 22242)The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue.

Similar decisions

Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))The insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims.
Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U))The insurer's affidavits describing its mailing practices raised a triable issue in response to the provider's proof of untimely denials.
Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))The insurer established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services.
W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))The insurer's sworn IME report established a lack of medical necessity for the acupuncture services at issue.