January 31, 2020

Active Care Med. Supply Corp. v Titan Ins. Co. (2020 NY Slip Op 50183(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-titan-ins-co-2020-ny-slip-op50183u/

Court: Appellate Term, Second Department
Decided: January 31, 2020
Citation: 2020 NY Slip Op 50183(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Fraudulent incorporation (Mallela) Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Effect of insurer's declaratory judgment (see the maps)

Cite as

Active Care Med. Supply Corp. v Titan Ins. Co., 2020 NY Slip Op 50183(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 failed to prove the provider lacked a required license when it distributed the medical supplies at issue. The insurer's investigator acknowledged that the provider obtained a New York City Department of Consumer Affairs license, and its claims specialist showed the supplies were furnished afterward. Prior declaratory orders concerned supplies distributed before licensing and did not support dismissal here. The Appellate Term, Second Department, modified the order to deny the licensing branch of the insurer's summary judgment motion. It affirmed denial of the provider's cross motion for failure to establish an untimely or legally deficient denial and remitted the remaining EUO nonappearance and policy-exhaustion branches for determination.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Titan Ins. Co. (2020 NY Slip Op 50183(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Active Care Medical Supply Corp., as Assignee of Pierre, Miraclea, Appellant,
against
Titan Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Mccormack & Mattei, P.C. (Jamila Shukry and Erin O’Neill of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 7, 2018. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue, and implicitly denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground, among others, that plaintiff lacked standing to bring the action because it did not possess a license to distribute the products at issue. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered February 7, 2018, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked standing to bring the action, and implicitly denied plaintiff’s cross motion. The court stated that defendant’s licensing defense is not precludable and noted that, in two separate orders in a declaratory judgment action, the Supreme Court, Nassau County, had found that plaintiff herein lacked a license to distribute its products. The Civil Court did not reach the remaining branches of defendant’s motion, which sought summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath and that the limits of the insurance policy had been exhausted.

“The proponent of a summary judgment motion must make a prima facie showing of [*2]entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In an affidavit in support of the branch of defendant’s motion seeking summary judgment on the ground that plaintiff lacked the required license to distribute the supplies at issue, defendant’s medical investigator admitted that plaintiff had obtained a license with the New York City Department of Consumer Affairs on October 12, 2011, and the affidavit of defendant’s claims specialist demonstrated that the supplies had been provided after that date. Thus, defendant’s evidence was insufficient to demonstrate the absence of any material issues of fact (see id.) regarding plaintiff’s licensing. Furthermore, to the extent that the Civil Court considered prior determinations by the Supreme Court, Nassau County, in the declaratory judgment action, as the Supreme Court’s orders pertained to supplies that had been distributed before October 12, 2011, the Civil Court’s reliance on the orders of the Supreme Court was misplaced, and the branch of defendant’s motion based on plaintiff’s alleged lack of a license should have been denied.

Contrary to plaintiff’s assertion, plaintiff was not entitled to summary judgment, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 31, 2020

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.

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: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the claimant not entitled to summary judgment because its proof did not establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.

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, 247 (this one included) are in the same category.

Effect of insurer's declaratory judgment

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Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: No preclusion because the DJ does not conclusively decide these claims or cannot operate on them (rules on the question, but another ground decided the case)

Held the Supreme Court's orders in the insurer's declaratory judgment action finding the provider unlicensed did not support dismissal because they concerned supplies distributed before the provider obtained its license, not the later supplies at issue.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followed

Of the 163 decisions on this question in the Second Department courts and the Court of Appeals, 27 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

Parisien v Zipcar (2022 NY Slip Op 51245(U)) FollowedThe prior declaratory judgment did not bar the provider's no-fault action arising from a different accident.
Parisien v Avis Car Rental, LLC (2023 NY Slip Op 50891(U)) FollowedA prior declaratory judgment did not preclude the provider's claims for treatment rendered after that judgment.

Similar decisions

Active Care Med. Supply Corp. v Farmington Cas. Co. (2019 NY Slip Op 50987(U))The provider's second and third causes of action were premature because requested wholesale invoices remained outstanding.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51584(U))The insurer established lack of medical necessity through an unrebutted IME report despite insufficient proof of EUO nonappearance.
Active Care Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))The provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied.
Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))The insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion.
Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51185(U))The provider's medical affidavit failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity.