June 15, 2007
VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51217(U))
https://www.beynensonlaw.com/case-law/va-acutherapy-acupuncture-p-c-v-state-farm-ins-co-2007-ny-slip-op51217u/
- Decided
- June 15, 2007
- Citation
- 2007 NY Slip Op 51217(U) · 16 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51217(U))
| VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co. |
| 2007 NY Slip Op 51217(U) [16 Misc 3d 126(A)] |
| Decided on June 15, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-146 K C. NO. 2005-146 K C
against
State Farm Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 3, 2004. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.
Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.
In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes
its prima facie entitlement to summary judgment by proof of the submission of a statutory claim
form, setting forth the fact and the amount of the loss sustained,
and that payment of no-fault benefits is overdue (see e.g. Insurance Law §
5106 [a]; Mary Immaculate Hosp. v
Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v
Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d
& 11th Jud Dists]). In the instant case, the denial of claim form (NF-10) annexed to
plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and
received by defendant (see Careplus
Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud
Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing
that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to
plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant
received the claims, such an argument lacks merit (see Insurance Law 5106 [a]).
[*2]
In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).
In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,
Respondent, [*3]
-against-
STATE FARM INS. CO.,
Appellant.
Golia, J., concurs with the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the
majority. I, however, wish to note that I do not agree with certain propositions of law set forth in
cases cited therein which are inconsistent with my prior expressed positions and generally
contrary to my views.
Decision Date: June 15, 2007
Legal questions (4)
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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the insurer's denial form annexed to the provider's papers established submission and receipt, and rejected the argument that a denial issued within 10 days defeated the overdue element; the motion failed on the insurer's defenses instead.
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.
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 established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)
Held the insurer's denial form annexed to the provider's moving papers sufficient to establish that the claims were submitted to and received by the insurer; the motion failed on the insurer's coverage and eligibility defenses.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
On the merits, when may a no-fault insurer withhold payment because unlicensed persons own or control the provider (Mallela)?
This decision: Evidence of unlicensed ownership/control enough to proceed, but not resolved (rules on the question, but another ground decided the case)
Held the insurer's opposition sufficient to raise an issue of fact as to whether the provider was fraudulently incorporated and so ineligible for reimbursement, defeating its summary judgment motion.
Of the 61 decisions on this question in the Second Department courts and the Court of Appeals, 19 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried (rules on the question, but another ground decided the case)
Held the investigator's affidavit showed a founded belief that the collision was part of an insurance fraud scheme, raising a triable issue of coverage that defeated the provider's motion.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545) FollowedThe insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
- State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416)Fraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
- Allstate Ins. Co. v Belt Parkway Imaging, P.C. (2006 NY Slip Op 07279)Insurers may withhold payment of pre-April 4, 2002 claims from fraudulently incorporated providers under 11 NYCRR 65-3.16 (a) (12).
- Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)A fraudulently incorporated medical provider cannot recover unpaid no-fault benefits even for services predating the licensing regulation.
- Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 27135)The insurer raised issues concerning the provider's actual operation and control that required discovery before summary judgment.
- Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50052(U))Fraudulent licensing under 11 NYCRR 65-3.16 (a) (12) is a nonwaivable defense outside the 30-day preclusion rule.
- Lexington Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 26251)The provider's summary judgment motion was premature because discovery could establish fraudulent incorporation and reimbursement ineligibility.
Similar decisions
- AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.
- Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))The insurer established full payment at the workers' compensation fee-schedule rate for chiropractic acupuncture.
- Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.
- Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 50078(U))An out-of-state affidavit's missing certificate of conformity may be disregarded where no substantial right is prejudiced.