May 19, 2005
Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U))
https://www.beynensonlaw.com/case-law/gpm-chiropractic-p-c-v-state-farm-mut-ins-co-2005-nyslipop-50744u/
- Decided
- May 19, 2005
- Citation
- 2005 NY Slip Op 50744(U)
- Posture
- Summary judgment
- Outcome
- Split result
- 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 Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U))
| Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. |
| 2005 NYSlipOp 50744(U) |
| Decided on May 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-709 Q C NO. 2004-709 Q C
against
STATE FARM MUTUAL INSURANCE COMPANY, Appellant.
Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered December 16, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.
Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.
Plaintiff health care provider commenced this action to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. Upon a review of the record, we find that 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the alleged injuries did not arise out of a covered accident ([*2]see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.
Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations
[*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 2004 NY Slip Op 24482 [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).
Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree 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: May 19, 2005
Legal questions (3)
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.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried
Held the insurer's investigator affidavit sufficient to show a founded belief that the injuries did not arise from an insured incident, raising a triable issue so the provider's summary judgment was denied.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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 the provider made its prima facie showing by proving it submitted a claim stating the fact and amount of loss and that payment was overdue.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements (rules on the question, but another ground decided the case)
Held the insurer not entitled to summary judgment on the assignor's nonattendance at scheduled EUOs, for a December 2000 accident, stating no reason beyond citations to prior Appellate Term authority.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (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.
- Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482) FollowedThe insurer failed to establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221) FollowedEUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Cited by
A label shows how the later decision treated this one.
- V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 50304(U)) FollowedThe provider's summary judgment motion was denied because the insurer's investigator affidavit raised a triable coverage issue.
Similar decisions
- GPM Chiropractic, P.C. v State Farm Mut. Ins. Co (2005 NYSlipOp 50861(U))The insurer's investigator affidavit raised a triable staged-collision coverage issue despite an untimely denial.
- New Century Chiropractic, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 52236(U))The insurer's investigator established a founded belief that the injuries did not arise from an insured incident, raising a coverage issue.
- A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51033(U))The insurer's EUO evidence did not establish a founded belief that the claimed injuries arose from a noncovered event.
- A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 52300(U))The insurer's investigator raised a triable issue as to whether the assignor's injuries arose from an insured incident.
- Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.