December 30, 2005
Gribenko v Allstate Ins. Co. (2005 NYSlipOp 52201(U))
https://www.beynensonlaw.com/case-law/gribenko-v-allstate-ins-co-2005-nyslipop-52201u/
- Decided
- December 30, 2005
- Citation
- 2005 NY Slip Op 52201(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 2 later decisions (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 Gribenko v Allstate Ins. Co. (2005 NYSlipOp 52201(U))
| Gribenko v Allstate Ins. Co. |
| 2005 NYSlipOp 52201(U) |
| Decided on December 30, 2005 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and BELEN, JJ
2004-1798 K C. NO. 2004-1798 K C
against
ALLSTATE INSURANCE COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jack Battaglia, J.), entered November 16, 2004. The order granted plaintiffs’ motion for summary judgment.
Order reversed without costs and plaintiffs’ motion for summary judgment denied.
In general, a health care provider establishes 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]). Affidavits of the persons who rendered medical services to plaintiffs’ assignors were submitted in support of plaintiffs’ motion for summary judgment. Although the affiants stated that it was the practice of their offices to mail claim forms within five business days of the date on the claim form, this was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679 [2001]). Nor did the affidavits state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiffs
herein failed to establish by competent proof that the claim forms were
submitted to defendant, they did not make the requisite showing to establish a prima facie entitlement to summary judgment, and the burden never shifted to defendant (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, summary judgment should have been denied.
Pesce, P.J., and Belen, J., concur.
Golia, J., concurs in a separate memorandum.
[*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
VIKTOR GRIBENKO, M.D., P.C. and R.I.M MEDICAL
a/a/o OLEG DADASHEV, GENNADIY IZRAILOV,
SCOTT KLEIN, IVAN LAGODYUK, FAUD MEKHTIEV
and DAVID YUSUPOV,
Respondents,
-against-
ALLSTATE INSURANCE COMPANY,
Appellant.
Golia, J., concurs in the following memorandum:
I concur with the majority in reversing the order of the lower court, but need to amplify the distinction that I find between being a proponent of a motion for summary judgment and opposing a motion for summary judgment.
In the case at bar, plaintiffs moved for summary judgment directing payment for no-fault claims, based upon their contention that they had established a prima facie case that claims were properly sent and that defendant failed to pay or deny the claims within
30 days. The lower court granted summary judgment, and the majority of this court reverses, upon a finding that plaintiffs’ submissions failed to establish that the claim forms were, in fact, actually mailed to defendant.
While I am in agreement with this holding, I feel compelled to clarify the distinction between my support of this holding and my dissent from this court when it grants summary judgment to a plaintiff which establishes actual mailing where the defendant asserts that it mailed a denial but fails to properly establish that the denial form was mailed.
I have held in a number of cases, including my dissent in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]), that:
“Although the defendant’s affidavits do not contain detailed mailing procedures [*4]necessary to establish proof that a certain item was mailed . . . , I do find that the sworn statements by defendant’s medical examination scheduler’ are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]).” (emphasis added)
The important distinction is that an “incomplete” proof of mailing can be sufficient to warrant denying a motion for summary judgment but is not sufficient to warrant granting a motion for summary judgment.
As stated by the Appellate Division in the early case of Braun v Carey (280 App Div 1019 [1952]), and cited with approval by the Court of Appeals in Sillman v Twentieth Century-Fox Film Corp. (3 NY2d 395 [1957]), the drastic remedy of “summary judgment on affidavits should not be granted where there is any doubt as to the existence of triable issues of fact” (Braun v Carey, 280 App Div at 1019-1020).
Accordingly, I concur with the majority in reversing the order of the lower court.
Decision Date: December 30, 2005
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 providers failed to make a prima facie showing because their affidavits did not establish a standard office mailing practice or the affiants' knowledge of compliance, so submission of the claim forms was not proved.
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 that treating providers' statements that their offices mailed claim forms within five business days did not describe a standard practice ensuring proper addressing and mailing, nor show duty or knowledge of compliance, so mailing was unproved.
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.
- 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.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. (2005 NY Slip Op 50254(U)) FollowedThe insurer's conclusory office-practice affidavit failed to prove timely mailing of verification requests.
- Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772(U))The insurer failed to prove mailing of IME requests, and its untimely denial of one claim was not supported by effective tolling.
Cited by
A label shows how the later decision treated this one.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U)) Contrasted (cf., but see)The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U)) Contrasted (cf., but see)The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
- Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (2006 NY Slip Op 52479(U))The insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial.
Similar decisions
- Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U))A provider need not allege that the insurer's denial was untimely to establish prima facie entitlement to summary judgment.
- A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2005 NYSlipOp 50785(U))The insurer's attorney affirmation and unsworn reports failed to raise a triable staged-collision issue without an excuse for inadmissibility.
- Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U))The insurer's EUO request did not toll one claim, and its opposition failed to rebut medical necessity on the other.
- A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
- Midisland Med., PLLC v Allstate Ins. Co. (2008 NY Slip Op 51760(U))The provider's treating doctor failed to authenticate the claim forms or sufficiently state the pertinent facts supporting the claims.