January 26, 2009

Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U))

https://www.beynensonlaw.com/case-law/gashinskaya-v-state-farm-mut-auto-ins-co-2009-ny-slip-op-51283u/

Court: Appellate Term, Second Department
Decided: January 26, 2009
Citation: 2009 NY Slip Op 51283(U) · 24 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Gashinskaya v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 127(A), 2009 NY Slip Op 51283(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.

A provider need not allege that the insurer's denial was untimely to establish prima facie entitlement to summary judgment. Under Insurance Law § 5106 (a), proof of claim submission stating the fact and amount of loss, and overdue payment, generally suffices. The Appellate Term, Second Department, affirmed the provider's judgment. The insurer's claims representative established neither actual mailing of the denials nor a standard mailing practice in the office from which they allegedly were sent. The insurer was therefore precluded from asserting lack of medical necessity. Because the insurer raised no other challenge to the prima facie case, the court did not otherwise review the finding that the provider established it.

Reported in New York Official Reports at Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U))

[*1]

Gashinskaya v State Farm Mut. Auto. Ins. Co.

2009 NY Slip Op 51283(U) [24 Misc 3d 127(A)]

Decided on January 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., and RIOS, J.
2006-1982 Q C

Aleksandra Gashinskaya, M.D., PM & R as assignee of Melvin Brown, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), entered July 24, 2006, deemed from a judgment of the same court entered September 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 31, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,970.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant contends that plaintiff failed to establish a prima facie case because plaintiff did not allege that defendant’s denial of claim forms were untimely. This contention
lacks merit since a plaintiff provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Payments are overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]). In the instant case, inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the court’s determination with respect thereto.

To the extent that defendant sought to demonstrate the existence of an issue of fact as to the medical necessity of the services rendered, the affidavit of defendant’s claims representative neither established actual mailing of the denials nor gave rise to a presumption that they were mailed because it did not set forth the standard office practice or procedure designed to ensure that items are properly addressed and mailed which was utilized in the office from which the subject denial of claim forms were allegedly mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, defendant is precluded from raising its proffered defense of lack of medical [*2]necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Consequently, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: January 26, 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 argument that the provider had to allege that the denials were untimely, holding that proof of submission of the claim and overdue payment suffices.

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

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 neither showed actual mailing of the denials nor described the standard office mailing practice used, so the insurer was precluded from its medical-necessity defense.

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.

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.

Similar decisions

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
Bongiorno v State Farm Ins. Co. (2009 NY Slip Op 50860(U))The insurer's unrebutted IME report and claims affidavit established its entitlement to summary judgment for lack of medical necessity.
Gribenko v Allstate Ins. Co. (2005 NYSlipOp 52201(U))The providers failed to establish submission of their claims because their affidavits did not adequately prove mailing.
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51432(U))The insurer's investigator raised a triable coverage issue based on a founded belief that the collision furthered an insurance fraud scheme.
GPM Chiropractic, P.C. v State Farm Mut. Ins. Co (2005 NYSlipOp 50861(U))The insurer's investigator affidavit raised a triable staged-collision coverage issue despite an untimely denial.