July 7, 2006
Bronxborough Med., P.C. v New Hampshire Ins. Co. (2006 NY Slip Op 51354(U))
https://www.beynensonlaw.com/case-law/bronxborough-med-p-c-v-new-hampshire-ins-co-2006-ny-slip-op-51354u/
- Decided
- July 7, 2006
- Citation
- 2006 NY Slip Op 51354(U) · 12 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 Bronxborough Med., P.C. v New Hampshire Ins. Co. (2006 NY Slip Op 51354(U))
| Bronxborough Med., P.C. v New Hampshire Ins. Co. |
| 2006 NY Slip Op 51354(U) [12 Misc 3d 141(A)] |
| Decided on July 7, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : GOLIA, J.P., RIOS and BELEN, JJ
2005-1599 Q C. NO. 2005-1599 Q C
against
New Hampshire Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 26, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.
Order, insofar as appealed from, reversed without costs, plaintiff’s cross motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see 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 denying plaintiff’s cross motion for summary judgment, the court below referred to the allegedly defective NF-3 form which contains an unreadable marking in the provider’s signature space, an allegedly defective assignment and an allegedly defective supporting affidavit by someone without personal knowledge of the facts. However, these deficiencies were waived because the defendant failed to timely seek verification of the assignment or the NF-3 form (A.B. [*2]Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists]).
In opposition to plaintiff’s cross motion for summary judgment, the defendant conceded that it had received plaintiff’s claim form and indicated the date of receipt on its denial of claim form. This adequately established that plaintiff sent and defendant received said claim (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]). Defendant made the conclusory allegation, by one without personal knowledge of the facts, that it had sent several requests for independent medical examinations (IMEs) and that plaintiff’s assignor failed to appear. Since defendant failed to describe the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to create a triable issue of fact (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]).
Accordingly, plaintiff’s cross motion for summary judgment should have been granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Rios and Belen, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
Golia, J.P., 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 7, 2006
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
Held the provider made its prima facie case because the insurer's concession and its denial form noting the receipt date established submission and receipt, and alleged defects in the claim form and supporting affidavit were waived.
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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to raise a triable issue because its conclusory affidavit by one without personal knowledge did not describe the office practice used to ensure IME requests were properly addressed and mailed.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Held the IME no-show defense raised no triable issue because the insurer's conclusory affidavit, made without personal knowledge, did not describe a standard practice for addressing and mailing the IME requests.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)
Held the alleged defects in the assignment, along with those in the claim form and supporting affidavit, were waived because the insurer failed to timely seek verification of the assignment or the claim form.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (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) FollowedThe 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)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U)) FollowedThe providers obtained partial summary judgment because denials were untimely or defenses lacked evidentiary support.
- Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U)) FollowedThe insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
- 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.
- Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U)) FollowedThe insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.
Similar decisions
- Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))The provider failed to establish prima facie entitlement to summary judgment through admissible business records.
- SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U))The insurer's timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense.
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
- Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50743(U))The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.