September 17, 2004
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U))
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-state-farm-mut-auto-ins-co-2004-ny-slip-op-51031u/
- Decided
- September 17, 2004
- Citation
- 2004 NY Slip Op 51031(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 2 later decisions (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 A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U))
| A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. |
| 2004 NY Slip Op 51031(U) |
| Decided on September 17, 2004 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-799 N C
against
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
Appeal by defendant from an order of the District Court, Nassau County (A. Cooper, Sr., J.), dated March 5, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.
Order unanimously modified by providing that plaintiffs’ motion for summary judgment is denied; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiffs’ affidavit in support of their motion for summary judgment set forth only that the affiant is a “practice and billing manager” and an “officer” of “plaintiff” notwithstanding that there are three named plaintiffs each asserting independent standing as an insured’s assignee. As we cannot assume that the affiant acted on behalf of one particular plaintiff or on behalf of all of the plaintiffs (A.B. Med. Servs. v Allstate Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), such an affidavit is “insufficient to establish that plaintiffs provided defendant with properly completed claim forms” (id.). We further note that as to D.A.V. Chiropractic P.C., the record before us contains no assignment of benefits form on plaintiff’s behalf, an additional reason for the motion’s denial as to this plaintiff. Accordingly, plaintiff’s motion for summary judgment [*2]should have been denied upon plaintiffs’ failure to make out a prima facie case.
With respect to defendant’s cross motion for summary judgment, upon the papers presented, defendant failed to establish its entitlement to judgment dismissing the action as a matter of law. Defendant’s claim that the assignors failed to cooperate with its requests to examine them under oath is without merit because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.15 [d] [3]; 65.2 [a], with 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002; e.g. King’s Med. Supply Inc v Progressive Ins., 3 Misc 3d 126 [A], 2004 NY Slip Op 501312 [U] [App Term, 2d & 11th Jud Dists]). Defendant’s argument that its policy provisions require an insured’s cooperation with an examination under oath is likewise misplaced in that the mandatory no-fault endorsement “cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]).
However, for the reasons set forth in Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (No. 2003-1289 N C decided herewith), involving the same assignors and the same traffic incident, we find defendant’s claim, that the underlying traffic incident was staged pursuant to a scheme to defraud, to be supported by sufficient factual allegations in admissible form to require a trial thereon, albeit insufficiently established to warrant accelerated judgment in defendant’s favor.
Decision Date: September 17, 2004
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.
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' affidavit insufficient to show properly completed claim forms were provided because the affiant did not say which of three plaintiffs she worked for, and one provider showed no assignment.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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)
Rejected the EUO non-cooperation defense because no regulation authorized EUOs when the claims were filed and the liability-policy cooperation clause could not qualify the mandatory no-fault endorsement.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer's staged-accident claim supported by sufficient admissible factual allegations to require a trial, though not established enough to warrant summary judgment for the insurer.
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.
Cited by
A label shows how the later decision treated this one.
- Siegel v Progressive Cas. Ins. Co. (2004 NY Slip Op 24532) FollowedAn assignment is an essential element of a provider's no-fault claim, and an insurer cannot waive its complete absence.
- Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 50611(U)) FollowedThe insurer raised a factual issue as to whether the collision furthered an insurance fraud scheme despite its late denial.
- Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51080(U))The insurer's affidavit raised a coverage issue based on a founded belief of insurance fraud despite its untimely denial.
Similar decisions
- Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51032(U))The insurer's investigator raised a triable staged-collision coverage issue despite the provider's adequate billing proof.
- A.B. Med. Servs. v Allstate Ins. Co. (2004 NY Slip Op 50373(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which of three providers it covered.
- A.B. Med. Servs. v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50517(U))The providers failed to establish their prima facie case because the billing manager's affidavit did not identify the provider served.
- A.B. Med. Servs. PLCC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24181)The insurer's EUO transcripts and investigator's affidavit raised triable fraud issues despite untimely denials.
- A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which provider employed the billing manager.