May 30, 2006
First Help Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 51043(U))
https://www.beynensonlaw.com/case-law/first-help-acupuncture-p-c-v-state-farm-ins-co-2006-ny-slip-op-51043u/
- Decided
- May 30, 2006
- Citation
- 2006 NY Slip Op 51043(U) · 12 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 First Help Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 51043(U))
| First Help Acupuncture P.C. v State Farm Ins. Co. |
| 2006 NY Slip Op 51043(U) [12 Misc 3d 130(A)] |
| Decided on May 30, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and BELEN, JJ
2005-336 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 January 11, 2005, and from a judgment entered thereon on January 18, 2006. The order granted plaintiff’s motion for summary judgment. The judgment awarded plaintiff the principal sum of $1,200.
Appeal from order dismissed.
Judgment reversed without costs, order entered January 11, 2005 vacated and plaintiff’s motion for summary judgment denied.
The appeal from the order must be dismissed because the right to appeal directly therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said order are brought up for review upon the appeal from the judgment (see CPLR 5501 [a] [1]).
In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms setting forth the fact and amounts of the losses 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]). While plaintiff’s moving papers were insufficient to establish submission of the claim forms (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), said deficiency was cured by defendant’s acknowledgment of receipt in its denial of claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).
In opposition to plaintiff’s motion, defendant’s submissions, consisting of, inter alia, the [*2]report of its special investigator, were sufficient to raise an issue of fact as to whether plaintiff is a fraudulently incorporated medical corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In Mallela, the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed and hence ineligible for reimbursement of no-fault benefits under 11 NYCRR 65-3.16 (a) (12), is a nonwaivable defense and is therefore not subject to the 30-day preclusion rule (cf. Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether plaintiff was a fraudulently licensed medical corporation, plaintiff’s motion for summary judgment should have been denied.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 30, 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 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
Held the insurer's special investigator's report raised a triable issue whether the provider was fraudulently incorporated, a nonwaivable defense not subject to the 30-day preclusion rule, so the provider's summary judgment was denied.
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.
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 that although the provider's papers did not establish submission of the claim forms, the insurer's acknowledgment of receipt in its denial forms cured the deficiency.
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 provider's papers did not establish submission of its claim forms but that the insurer's acknowledgment of receipt in its denial forms cured the deficiency.
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.
May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?
This decision: Insurer may raise or investigate the Mallela defense here (rules on the question, but another ground decided the case)
Held the defense that the provider is fraudulently licensed and ineligible for reimbursement is nonwaivable and not subject to the 30-day preclusion rule.
Of the 136 decisions on this question in the Second Department courts and the Court of Appeals, 112 (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.
- Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
- 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) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
- Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278) Contrasted (cf., but see)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
Cited by
A label shows how the later decision treated this one.
- K.O. Med., P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 51089(U)) FollowedA Mallela defense need not be preserved in a timely denial of claim.
- Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496)A provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
- Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51529(U))The insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns.
- 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.
- 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).
- J.K.M. Med. Care, P.C. v USAA Gen. Indem. Co. (2018 NY Slip Op 50818(U))A provider that fails to timely object to discovery demands must respond unless the demands are privileged or palpably improper.
- Lexington Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51758(U))The provider's inadequate discovery responses and failure to oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
Similar decisions
- Midborough Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 26360)An insurer's fraudulent-incorporation defense survives an untimely denial, and discovery into provider ownership and licensing is material.
- First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50354(U))The provider's failure to comply fully with ordered discovery concerning fraudulent incorporation warranted dismissal under CPLR 3126.
- Citywide Social Work & Psychological Servs., P.L.L.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51831(U))An untimely denial does not preclude a defense that a provider is fraudulently licensed and ineligible for no-fault reimbursement.
- 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.
- VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51217(U))The insurer raised factual issues concerning a staged collision and the provider's eligibility based on alleged fraudulent incorporation.