June 29, 2009
Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. (2009 NY Slip Op 51395(U))
https://www.beynensonlaw.com/case-law/fiveborough-chiropractic-acupuncture-pllc-v-american-employers-ins-co-div-of-onebeacon-am-ins-co-2009-ny-slip-op-51395u/
- Decided
- June 29, 2009
- Citation
- 2009 NY Slip Op 51395(U) · 24 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
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 Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. (2009 NY Slip Op 51395(U))
| Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. |
| 2009 NY Slip Op 51395(U) [24 Misc 3d 133(A)] |
| Decided on June 29, 2009 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through July 9, 2009; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1788 N C.
against
American Employers’ Insurance Company Div. of Onebeacon America Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated June 23, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for, inter alia, summary judgment dismissing the complaint on the ground, among others, that defendant did not receive the claim forms upon which plaintiff seeks to recover. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.
A provider establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The affirmation of plaintiff’s “primary doctor and principal shareholder” was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.
Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant’s cross motion (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]). We pass on no other issue.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.
Scheinkman, J., taking no part.
Decision Date: June 29, 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.
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 submitted (mailed to and received by the insurer)
Held the provider failed its prima facie case because its principal's affirmation showed neither actual mailing nor a standard office mailing practice, and counsel's affirmation lacked personal knowledge of mailing.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider's principal's affirmation insufficient to show actual mailing of the claim forms or a standard office practice ensuring proper addressing and mailing, and counsel's affirmation without personal knowledge had no probative value.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U)) FollowedThe provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims.
- Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U)) FollowedThe provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
Cited by
A label shows how the later decision treated this one.
- Natural Therapy Acupuncture, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51350(U)) FollowedThe insurer established deductible and fee schedule defenses to three claims and nonreceipt of the claim underlying the second cause of action.
- Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50766(U)) FollowedThe insurer's own affidavits established the provider's entitlement to $97.14 on a fully denied claim billed under CPT code 99205.
- St. Vincent’s Hosp. & Med. Ctr. v American Tr. Ins. Co. (2010 NY Slip Op 52063(U)) FollowedThe hospital satisfied requests for signed NF-5 forms by supplying the assignors' executed release authorizations and assignments.
- Meridian Acupuncture Care, P.C. v Mercury Cas. Co. (2015 NY Slip Op 50681(U))The insurer's reliance on an IME of someone other than the assignor failed to establish lack of medical necessity.
- Artzel, Inc. v Mercury Cas. Co. (2016 NY Slip Op 51437(U))The insurer established nonreceipt of the claim form, and the provider offered no evidence that it had submitted the form.
Similar decisions
- Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))The provider failed to establish claim submission because it proved neither actual mailing nor a reliable office mailing practice.
- South Nassau Orthopedic Surgery and Sports Medicine, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51300(U))The insurer failed to establish timely denial mailing because its affidavit did not prove mailing practices during the relevant period.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records.
- 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.
- Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.