July 18, 2006

Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51438(U))

https://www.beynensonlaw.com/case-law/fair-price-med-supply-corp-v-liberty-mut-ins-co-2006-ny-slip-op-51438u/

Court: Appellate Term, Second Department
Decided: July 18, 2006
Citation: 2006 NY Slip Op 51438(U) · 12 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co., 12 Misc 3d 145(A), 2006 NY Slip Op 51438(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 failed to prove timely mailing of its denial and was precluded from asserting its excessive-charge defense. The Appellate Term, Second Department, reversed the order denying the provider summary judgment, granted the motion, and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). The denial form's acknowledgment of claim receipt cured deficient proof of submission. Although the form showed receipt of verification and bore a subsequent denial date, the insurer supplied neither an affidavit based on personal knowledge of mailing nor a sufficiently detailed office-mailing procedure. It therefore raised no factual issue concerning payment or denial within the 30-day period under 11 NYCRR 65-3.8 (c). A separate concurrence agreed only with the result and disputed propositions in cited authorities.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51438(U))

[*1]

Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co.

2006 NY Slip Op 51438(U) [12 Misc 3d 145(A)]

Decided on July 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1195 K C. NO.2005-1195 K C

FAIR PRICE MEDICAL SUPPLY CORP., AAO AHMED MIZAN, Appellant,
against
LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered March 17, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $1,222.95 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an affirmation in opposition, defendant’s attorney argued that plaintiff failed to make out a prima facie case entitling it to summary judgment.

The deficiency in plaintiff’s moving papers concerning proof of its submission of its claim to defendant was cured by the denial of claim form, dated April 5, 2004, annexed to plaintiff’s moving papers, which states that defendant received the claim on January 30, 2004 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

While defendant acknowledged in its denial of claim form that it received the requested verification from plaintiff on March 19, 2004 and the denial of claim form is dated April 5, 2004, defendant failed to establish that it timely mailed its denial of claim form since it failed to submit an affidavit by one with personal knowledge that the denial of claim form was timely mailed or an affidavit containing a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of the timely mailing of same (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; S&M Supply Inc. v [*2]Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to raise an issue of fact regarding whether it paid or denied the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including the defense, in effect, of excessive charges (cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]). In light of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson J., concur.

Golia, J., concurs in a separate memorandum.

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: July 18, 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.

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

Held the gap in the provider's proof of submitting the claim was cured by the insurer's denial form stating the date the claim was received, so the provider made its prima facie case.

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

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

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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 insurer failed to prove timely mailing of its denial because it offered neither an affidavit with personal knowledge of the mailing nor a detailed description of its standard mailing procedure.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 26068)A defense of fraudulent corporate licensure is not precluded by an insurer's failure to timely deny no-fault claims.
S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U))The insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U)) Contrasted (cf., but see)The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U)) Contrasted (cf., but see)An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity.

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 ELRAC Inc. (2006 NY Slip Op 51437(U))The defendants raised triable issues concerning partial payment and a founded belief that the injuries did not arise from an insured incident.
Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545)The insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
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.
Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52266(U))The insurer's unproved mailing of EUO requests left its denial untimely and precluded its excessive-billing and medical-necessity fraud defense.