April 29, 2008

Vinings Spinal Diagnostics v Progressive Cas. Ins. Co. (2008 NY Slip Op 51468(U))

https://www.beynensonlaw.com/case-law/vinings-spinal-diagnostics-v-progressive-cas-ins-co-2008-ny-slip-op51468u/

Court
Appellate Term, Second Department
Decided
April 29, 2008
Citation
2008 NY Slip Op 51468(U) · 20 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Split result
Issues
Timeliness and preclusion Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Vinings Spinal Diagnostics v Progressive Cas. Ins. Co., 20 Misc 3d 133(A), 2008 NY Slip Op 51468(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2008)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to prove that the provider used an improper claims address, leaving a factual issue about the denial's timeliness. The provider also failed to establish entitlement to summary judgment because its owner's affidavit lacked sufficient detail to lay a business-record foundation for the supporting documents. The insurer claimed its denial was timely when measured from receipt at the proper processing office under 11 NYCRR 65-3.5 (b), but its affidavit did not establish that the original address was improper or that the determination period was extended. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed denial of the provider's motion; it did not reach medical necessity.

Reported in New York Official Reports at Vinings Spinal Diagnostics v Progressive Cas. Ins. Co. (2008 NY Slip Op 51468(U))

[*1]
Vinings Spinal Diagnostics v Progressive Cas. Ins. Co.
2008 NY Slip Op 51468(U) [20 Misc 3d 133(A)]
Decided on April 29, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2006-1419 N C.
Vinings Spinal Diagnostics a/a/o Michael Devine, Appellant,

against

Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Valerie J. Bullard, J.), dated May 8, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, affirmed without costs.

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. By order entered May 8, 2006, the court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficiently specific to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied.

The court erred in granting defendant’s cross motion for summary judgment dismissing the complaint because there is an issue of fact as to whether defendant’s denial of claim form was [*2]timely. Although defendant contends that its denial of claim form was timely because it was issued within 30 days of being received at the proper claims processing office (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), its affiant did not set forth facts sufficient to prove that the address plaintiff used was the improper address. As a result, defendant failed to demonstrate that the 30-day claim determination period was extended and, therefore, failed to establish its prima facie entitlement to summary judgment. We do not pass on the issue of medical necessity. Accordingly, defendant’s cross motion for summary judgment dismissing the complaint is denied.

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: April 29, 2008

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