September 3, 2008
Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51862(U))
https://www.beynensonlaw.com/case-law/align-for-health-chiropractic-p-c-v-new-york-cent-mut-fire-ins-co-2008-nyslip-op-51862u/
- Decided
- September 3, 2008
- Citation
- 2008 NY Slip Op 51862(U) · 20 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (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 Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51862(U))
| Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2008 NY Slip Op 51862(U) [20 Misc 3d 144(A)] |
| Decided on September 3, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2007-540 K C. NO. 2007-540 K C
against
New York Central Mutual Fire Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 13, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.
Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Defendant also cross-moved for summary judgment on the ground that the action was premature because plaintiff failed to provide verification which defendant requested. The court denied plaintiff’s motion for summary judgment on the ground that plaintiff did not prove that the claim forms were mailed to defendant and granted defendant’s cross motion, finding that the action was premature. This appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures, so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment [*2](see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.
However, defendant failed to demonstrate that it timely mailed the verification and follow-up verification requests (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]). Consequently, defendant’s cross motion failed to establish that plaintiff’s action was premature due to plaintiff’s failure to respond to timely verification requests (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; cf. Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, defendant’s cross motion for summary judgment should have been denied.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
Golia, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:
I concur with the majority’s finding that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, in line with our holding in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
However, I disagree and dissent from its determination that “defendant failed to demonstrate
that it timely mailed the verification and follow-up verification requests . . . .” I find that the
record demonstrates that defendant timely mailed the verification and
follow-up verification requests, all in accordance with my dissenting opinions in Uptodate Medical Services, P.C. v
Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App
Term, 2d & 11th Jud Dists 2008]) and Horton Med., P.C. v New York Cent. Mut. Fire Ins.
Co. (___ Misc 3d ___, 2008 NY Slip Op [App Term, 2d & 11th Jud Dists 2008]).
Inasmuch as plaintiff has failed to respond to those requests, defendant’s cross motion for summary judgment dismissing the action as premature was properly granted by the motion court (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).
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: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie case because its officer's conclusory affidavit did not show personal knowledge of its practices to lay a business-records foundation for the annexed documents.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (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 failed to demonstrate that it timely mailed its verification and follow-up verification requests.
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient
Held the insurer did not establish prematurity because it failed to prove timely mailing of its verification and follow-up requests, so its cross motion should have been denied.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) Contrasted (cf., but see)An insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
- Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) Contrasted (cf., but see)The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
- Uptodate Med. Servs., P.C. v Lumbermens Mut. Cas. Co. (2008 NY Slip Op 51502(U))The insurer failed to prove timely mailing of verification requests and denials, precluding its medical-necessity defense.
Cited by
A label shows how the later decision treated this one.
- Focus Radiology, P.C. v New York Cent. Mut. Ins. Co. (2009 NY Slip Op 51218(U)) FollowedA provider's late filing of the summons and proof of service did not warrant dismissal where nunc pro tunc relief was requested and justified.
- Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50230(U))The insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded.
- Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))The insurer failed to establish timely mailing of its denial and that its medical necessity defense was not precluded.
Similar decisions
- 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.
- Mani Med., P.C. v Eveready Ins. Co. (2008 NY Slip Op 52697(U))The insurer's stamped peer reviews failed to raise a triable issue because the record did not establish the doctor's authorization.
- Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
- Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51672(U))The insurer's adjuster affidavits failed to establish timely mailing of denials, precluding its defenses.
- Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U))The provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.