November 4, 2005

A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-tr-ins-co-2005-ny-slip-op-51893u/

Court: Appellate Term, Second Department
Decided: November 4, 2005
Citation: 2005 NY Slip Op 51893(U) · 10 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Assignments and standing
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

A.B. Med. Servs. PLLC v American Tr. Ins. Co., 10 Misc 3d 127(A), 2005 NY Slip Op 51893(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

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 waived defenses based on incomplete assignments by failing to object within 10 days of receipt. The medical provider established prima facie entitlement to partial summary judgment by proving submission of claims stating the fact and amounts of its losses and overdue payment under Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted partial summary judgment on that provider's claims at issue and remanded for statutory interest, attorney fees and proceedings on the remaining claims. The other providers' appeals were dismissed under CPLR 5511 because they lacked an interest in the specific sums in controversy.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))

[*1]

A.B. Med. Servs. PLLC v American Tr. Ins. Co.

2005 NY Slip Op 51893(U) [10 Misc 3d 127(A)]

Decided on November 4, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 4, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2004-1542 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C., LVOV ACUPUNCTURE P.C., a/a/o JOSUE JEAN-GILLES, Appellants,
against
American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from as limited by plaintiffs’ brief, denied so much of a motion as sought partial summary judgment on behalf of plaintiff A.B. Medical Services PLLC.

Order, insofar as appealed from, unanimously reversed without costs, plaintiffs’ motion granted to the extent of awarding plaintiff A.B. Medical Services PLLC partial summary judgment in the principal sum of $4,575.44, and matter remanded to the court
below for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims.

Appeal as taken by plaintiffs D.A.V. Chiropractor P.C. and Acupuncture P.C. unanimously dismissed.

Plaintiffs commenced this action to recover $6,080.18 in first-party no-fault benefits for medical services rendered to the assignor. Thereafter, a motion was brought seeking partial summary judgment in the principal sum of $4,575.44 based on some claims made by plaintiff health care provider A.B. Medical Services PLLC. Said plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims setting forth the fact and the amounts of the losses it sustained, and that payment of no-fault benefits was overdue (see [*2]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 the case at bar, the defendant’s failure to object to the completeness of the assignments within 10 days of receipt constituted a waiver of any defenses based thereon (New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]).

The appeal as taken by the other plaintiffs is dismissed since they lack an interest in the specific sums in controversy upon the appeal (see CPLR 5511).

Accordingly, plaintiff A.B. Medical Services PLLC is awarded partial summary judgment in the principal amount of $4,575.44 and the case is remanded for the calculation of statutory interest and attorney’s fees thereon, as well as for all further proceedings on the remaining claims.
Decision Date: November 04, 2005

Legal questions

A question 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 provider established its prima facie case by proof that it submitted claims setting forth the fact and amounts of loss and that payment was overdue, and granted partial summary judgment.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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.
New York Hosp. Med. Ctr. of Queens v AIU Ins. Co. (2004 NY Slip Op 05217) FollowedThe insurer waived objections to missing signatures by failing to challenge the hospital forms' completeness within 10 days of receipt.

Similar decisions

A.B. Med. Servs. PLLC v Allstate Ins. Co. (2005 NYSlipOp 51270(U))The insurer failed to prove timely mailing of its denials, entitling the providers to partial summary judgment on the claims they moved upon.
A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2005 NYSlipOp 50650(U))The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition.
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50432(U))The providers failed to establish prima facie entitlement to partial summary judgment because they omitted the necessary claim forms.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51261(U))The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records.
A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))The providers failed to establish submission of completed claim forms because their billing affidavit did not identify the provider it covered.