June 1, 2018
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))
https://www.beynensonlaw.com/case-law/acupuncture-healthcare-plaza-i-p-c-v-allstate-ins-co-2018-ny-slip-op50835u/
- Decided
- June 1, 2018
- Citation
- 2018 NY Slip Op 50835(U) · 59 Misc 3d 150(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? · Proof of mailing (see the maps)
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 Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))
| Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. |
| 2018 NY Slip Op 50835(U) [59 Misc 3d 150(A)] |
| Decided on June 1, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2722 K C
against
Allstate Insurance Company, Appellant.
Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action.
The affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations—defendant is not entitled to summary judgment dismissing the first through fourth causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer, lacking proof that its denials were timely mailed, failed to show it was not precluded from asserting its IME no-show defense, so it was denied summary judgment.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer's affidavits did not sufficiently set forth a standard office practice or procedure that would ensure the denial of claim forms had been timely mailed.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Similar decisions
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
- Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal.
- Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))The insurer failed to establish timely IME requests because the record did not show when it received the provider's claims.
- Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
- KHL Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51709(U))The insurer failed to prove timely mailing of verification requests and denials, and the provider failed to establish its prima facie case.