May 19, 2006
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51033(U))
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-state-farm-mut-auto-ins-co-2006-ny-slip-op-51033u/
- Decided
- May 19, 2006
- Citation
- 2006 NY Slip Op 51033(U) · 12 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- 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. (2006 NY Slip Op 51033(U))
| A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. |
| 2006 NY Slip Op 51033(U) [12 Misc 3d 129(A)] |
| Decided on May 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON PATTERSON and GOLIA, JJ
2005-391 K C.
against
State Farm Mutual Automobile Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered January 13, 2005. The order denied plaintiffs’ motion for summary judgment.
Order reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and attorney’s fees.
In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted claims, 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
A review of the record indicates that, in opposition to plaintiffs’ motion for summary judgment, defendant solely relied upon a fraud defense alleging that the claims were based on a non-covered event. We note that defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the documentation submitted by defendant in opposition to plaintiff’s motion, consisting of the affirmation of defendant’s attorney and examinations under oath testimony of several persons involved in the accident, does not show [*2]that the accident was a non-covered event. The inconsistencies between the testimonies do not 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). Consequently, defendant failed to demonstrate 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]).
Accordingly, the order of the court below is reversed, plaintiffs’ motion for summary judgment is granted and matter remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum:
Contrary to the holding of the majority, I find that defendant presented sufficient facts and circumstances to establish that its denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).
The supporting papers established certain inconsistencies in the testimonies of the occupants of the subject car. Said papers also disclosed the facts that each of the occupants had several prior claims and that one of the prior claims involved the same two individuals being injured together in another automobile accident.
The confluence of circumstances certainly constitute a “founded belief” that the “accident” may not be a valid covered event.
As correctly stated by the majority, the defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).
Further, the D.A.V. Chiropractic claim for $303.30 was properly and timely denied due to lack of medical necessity based upon a “negative” IME report. The majority acknowledges the propriety and timeliness of the denial but believes summary judgment is warranted in favor of the plaintiff because the report annexed to the motion papers was an unsworn copy of the report.
For the reasons set forth, in detail, in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (6 Misc 3d 62 [2004]), an unsworn medical report when submitted in opposition to a motion for summary judgment is sufficient to raise a triable issue of fact.
Decision Date: May 19, 2006
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.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held that counsel's affirmation and inconsistencies among EUO testimonies did not show a founded belief that the accident was a non-covered event, so the providers were granted summary judgment.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (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 providers established their prima facie entitlement by proof that they submitted claims stating the fact and amount of the 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.
Cited in this decision
- 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.
- A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
- 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.
- Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (2004 NY Slip Op 24501)The insurer's submissions failed to raise a factual issue whether the claimed injuries arose from the accident.
Cited by
A label shows how the later decision treated this one.
- Webster Diagnostic Medicine, P.C. v State Farm Ins. Co. (2007 NY Slip Op 27134) FollowedThe insurer's conclusory fraud allegations and passenger EUO discrepancies failed to establish a founded belief of noncoverage.
- Medical Care G.M., P.C. v GEICO Ins. (2008 NY Slip Op 50379(U)) FollowedThe providers' summary judgment motion was granted because the insurer failed to support a founded belief of noncoverage with admissible evidence.
- East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U))The insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
Similar decisions
- A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U))The insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.
- A.B. Med. Servs. PLLC v GMAC Ins. (2005 NYSlipOp 50602(U))Transportation benefits claimed under the revised no-fault regulations are reimbursable but cannot be assigned to a transportation provider.
- 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.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.