July 9, 2009
AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))
https://www.beynensonlaw.com/case-law/aks-med-p-c-v-progressive-ins-co-2009-ny-slip-op-51494u/
- Decided
- July 9, 2009
- Citation
- 2009 NY Slip Op 51494(U) · 24 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions · 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 AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))
| AKS Med., P.C. v Progressive Ins. Co. |
| 2009 NY Slip Op 51494(U) [24 Misc 3d 135(A)] |
| Decided on July 9, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-450 Q C.
against
Progressive Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 9, 2008. The order, insofar as appealed from as limited by the brief, granted so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action.
Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment, insofar as is relevant to this appeal, upon its fifth cause of action,
involving a claim in the sum of $398.61. In opposition to plaintiff’s
motion, defendant argued that it never received said claim. As limited by its brief,
defendant appeals from so much of the Civil Court order as granted plaintiff summary judgment
on its fifth cause of action.
A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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 provider ordinarily establishes the submission of the claim form by demonstrating proof of its proper mailing, which proof gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Here, in light of the contradictions between the affidavit of plaintiff’s billing manager and the annexed post office ledger, upon which the billing manager relied, plaintiff did not establish submission of the $398.61 claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, plaintiff failed to establish its prima facie entitlement [*2]to summary judgment on its fifth cause of action. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought summary judgment on its fifth cause of action is denied.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009
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.
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 provider failed to establish its prima facie case on one claim because contradictions between its billing manager's affidavit and the annexed post office ledger left submission of the claim unproven.
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held no presumption of receipt arose because the billing manager's affidavit contradicted the post office ledger on which she relied, so the provider did not prove mailing of the claim.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 64 (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)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Cited by
- Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))The provider failed to prove submission of its claim because its mailing certificate identified a different insurer.
Similar decisions
- A.T. Med., P.C. v American Tr. Ins. Co. (2008 NY Slip Op 51853(U))The provider failed to prove claim submission or lay a business-records foundation for its summary judgment motion.
- A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51036(U))The insurer failed to establish tolling because it did not prove mailing of its follow-up verification request.
- Yklik, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50868(U))The provider failed to establish that the insurer had neither paid nor denied the claim within the required 30-day period.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50447(U))The provider's signed postal ledger and president's affidavit established mailing, and the insurer failed to raise a triable issue of timely denial.
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.