May 4, 2007

Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)

https://www.beynensonlaw.com/case-law/fair-price-med-supply-inc-v-st-paul-travelers-ins-co-2007-ny-slip-op-27173/

Court: Appellate Term, First Department
Decided: May 4, 2007
Citation: 2007 NY Slip Op 27173 · 16 Misc 3d 8
Posture: Other
Outcome: Provider prevailed
Later treatment: Distinguished in 2, contrasted (cf., but see) in 1 and followed in 6 later decisions (see Cited by)
Issues: Provider's prima facie case Assignments and standing
Legal questions: Claimant's prima facie case at trial (see the maps)

Cite as

Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 (App Term, 1st Dept 2007)

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's verified interrogatory answers established receipt and partial payment of the claims and defeated its proof-of-billing objection. The Appellate Term, First Department, affirmed the order, sustaining judgment for the provider. The insurer's verified answers were admissible party admissions, and it could not argue that the provider failed to prove mailing, receipt, or overdue claims. The court declined to follow Empire State Psychological Servs., P.C. v Travelers Ins. Co. insofar as it supported a contrary conclusion. The insurer also waived its objection to proof of assignment by failing to request verification of the assignment. Because it asserted no other defenses, judgment for the provider was proper.

Reported in New York Official Reports at Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)

Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co.

2007 NY Slip Op 27173 [16 Misc 3d 8]

Accepted for Miscellaneous Reports Publication

AT1

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, July 18, 2007

[*1]

Fair Price Medical Supply, Inc., as Assignee of Dorismond Frantz, Respondent,
v
St. Paul Travelers Insurance Company, Appellant.

Supreme Court, Appellate Term, First Department, May 4, 2007

APPEARANCES OF COUNSEL

Patrick Colligan, White Plains (Michael J. Palumbo of counsel), for appellant. Edward Shapiro, P.C., Wantagh (Steven F. Palumbo of counsel), for respondent.

{**16 Misc 3d at 114} OPINION OF THE COURT

Per Curiam.

Order, dated January 5, 2006, affirmed, with $10 costs.

In response to plaintiff’s interrogatories, defendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant’s verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence (see Bigelow v Acands, Inc., 196 AD2d 436 [1993]), defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it.

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignment (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Laufer v Lumberman’s Mut. Cas. Co., 9 Misc 3d 133[A], 2005 NY Slip Op 51632[U] [2005]). Since defendant failed to assert any other defenses, judgment was properly entered in favor of plaintiff.

McKeon, J.P., McCooe and Davis, JJ., concur.

Legal questions

A question 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 at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

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

Held the insurer's verified interrogatory answers admitting receipt of the claims and partial payment were party admissions that barred it from arguing the provider failed to prove mailing, receipt and overdue status.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 13 decisions on this question in the First Department courts and the Court of Appeals, 6 (this one included) are in the same category. 4 decisions in other departments that cite or are cited by this one are on the full map.

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.
Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U)) Declined to followThe provider failed to prove its prima facie case at trial by offering only the insurer's interrogatory response acknowledging bills.
Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) FollowedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
Laufer v Lumberman’s Mut. Cas. Co. (2005 NY Slip Op 51632(U)) FollowedThe insurer waived objections to the claim form and technical assignment defects by failing to object within 10 days of receipt.

Cited by (18)

A label shows how the later decision treated this one.

Custom Orthotics of NY, Inc. v State Farm Mut. Auto Ins. Co. (2007 NY Slip Op 27549) DistinguishedThe provider failed to establish its prima facie case at trial through the insurer's qualified admissions and unauthenticated documents.
Open MRI of Tarrytown v GEICO Ins. Co. (2009 NY Slip Op 50874(U)) DistinguishedAn insurer's admission of receiving claim forms through a notice to admit does not establish the truth of the forms' contents.
Bajaj v General Assur. (2007 NY Slip Op 27487) Contrasted (cf., but see)An insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.
Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp. (2010 NY Slip Op 51606(U)) FollowedMVAIC failed to support its lack-of-coverage defense and was not exempt from statutory interest and attorney's fees under Insurance Law § 5225.
P.L.P. Acupuncture, P.C. v Travelers Indem. Co. (2008 NY Slip Op 50484(U)) FollowedThe insurers' admission of receipt defeated their challenge to the provider's proof that its no-fault claims were mailed and received.
Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U)) FollowedThe providers established overdue claims, and the insurer's late denials and discovery preclusion left no triable issue.
Alleviation Med. Servs., PC v Hertz Co. (2015 NY Slip Op 25285) FollowedA provider may establish claim submission and receipt through admissions in denials annexed to the defendant's interrogatory response.
Prime Psychological Servs., P.C. v Auto One Ins. Co. (2008 NY Slip Op 50162(U)) FollowedThe provider failed to establish its trial prima facie case because it omitted the documents identified as attached to its notice to admit.
Tutto Anesthesia v American Country Ins. Co. (2015 NY Slip Op 50738(U)) FollowedThe insurer's own date-stamped claim forms established receipt and overdue payment of the providers' no-fault claims.
Central Nassau Diagnostic Imaging, P.C. v GEICO (2010 NY Slip Op 20244)A provider may establish entitlement to overdue no-fault benefits through an insurer's admissions resulting from an unanswered notice to admit.

Show all 18 citing decisions

Similar decisions

Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U))The insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.
Fair Price Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50357(U))The provider and insurer failed to establish entitlement to summary judgment because their affidavits lacked the necessary personal knowledge.
Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50861(U))The provider failed to prove submission of two claims, and the defendants raised a triable coverage issue as to the alleged accident.
Fair Price Med. Supply Corp. v Tri-State Consumer Ins. Co. (2007 NY Slip Op 50152(U))The provider's corporate officer affidavit failed to establish a business-records foundation for the documents supporting summary judgment.
Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 50639(U))The insurer established timely mailing of verification requests and its denial, and the provider did not prove an unlicensed-adjuster defect.