December 12, 2006
Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))
https://www.beynensonlaw.com/case-law/impulse-chiropractic-p-c-v-travelers-ins-co-2006-ny-slip-op-52469u/
- Decided
- December 12, 2006
- Citation
- 2006 NY Slip Op 52469(U) · 14 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (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 Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))
| Impulse Chiropractic P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 52469(U) [14 Misc 3d 127(A)] |
| Decided on December 12, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON PATTERSON and BELEN, JJ
2005-1861 K C.
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 9, 2005. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms to defendant (see A.B. Med. Servs. v State
Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim forms by demonstrating proof of proper mailing, which gives rise to the presumption that the claim forms were received by the addressee. The 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]). Here, the affidavit of plaintiff’s corporate officer was insufficient to establish that plaintiff mailed the claims to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendants and, as such, has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th [*2]Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its moving papers two delay letters from defendant is unavailing since said letters did not specifically refer to the claims at issue in that they did not set forth the amounts of the claims. Accordingly, since plaintiff failed
to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 12, 2006
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 burden because its officer's affidavit and counsel's affirmation did not establish that the claims were mailed, and the insurer's delay letters did not identify the claims.
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 officer's affidavit did not prove mailing, counsel's affirmation lacked personal knowledge, and delay letters omitting the claim amounts did not establish that the insurer received the claims.
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.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- 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.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221) FollowedEUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Cited by
A label shows how the later decision treated this one.
- Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. (2009 NY Slip Op 51395(U)) FollowedThe insurer established that it never received the provider's claims, and the provider failed to prove mailing.
Similar decisions
- Impulse Chiropractic, P.C. v Travelers Ins. Co. (2006 NY Slip Op 52371(U))The provider failed to establish submission of the claim form because its affidavit and the insurer's acknowledgment were insufficient.
- Impulse Chiropractic, P.C. v Countrywide Ins. (2007 NY Slip Op 52293(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
- Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
- 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.
- Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U))The provider failed to prove its prima facie case at trial by offering only the insurer's interrogatory response acknowledging bills.