January 14, 2013
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))
https://www.beynensonlaw.com/case-law/all-boro-psychological-servs-p-c-v-allstate-ins-co-2013-ny-slip-op50069u/
- Decided
- January 14, 2013
- Citation
- 2013 NY Slip Op 50069(U) · 38 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))
| All Boro Psychological Servs., P.C. v Allstate Ins. Co. |
| 2013 NY Slip Op 50069(U) [38 Misc 3d 134(A)] |
| Decided on January 14, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-280 K C.
against
Allstate Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, in effect, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands.
ORDERED that the order, insofar as appealed from, is modified by striking the provision granting the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands; as so modified, the order is affirmed, with $25 costs to defendant, and, upon searching the record, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits plaintiff moved for summary judgment and defendant cross-moved for summaryjudgment dismissing the complaint or, in the alternative, to compel plaintiff to respond to its discovery demands. The Civil Court, by order entered November 18, 2010, in effect, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands.
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claim had not been paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
We note that although defendant cross-moved for summary judgment in the Civil Court, it did not cross-appeal from so much of the order as, in effect, denied its cross motion. This [*2]appellate court, however, has the power to search the record on this appeal by plaintiff and to award summary judgment to the non-appealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). Upon a review of the record, we find that the affidavits submitted by defendant in support of its cross motion established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its initial and follow-up requests for verification pursuant to Insurance Department Regulations (11 NYCRR) §§ 65-3.5 (b) and 65-3.6 (b). Inasmuch as it is uncontroverted that plaintiff failed to respond to defendant’s verification requests, the 30-day period within which defendant was required to pay or deny the claim had not yet commenced to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599 [2011]). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d at 600). In view of the foregoing, we pass on no other issue.
Accordingly, the order, insofar as appealed from, is modified by striking the provision granting the branch of defendant’s cross motion seeking to compel plaintiff to respond to discovery demands and, upon a search of the record, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013
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: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider showed nonpayment but failed to show the insurer had not denied the claim or had issued a legally insufficient denial, so it did not establish prima facie entitlement.
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Held the insurer entitled to summary judgment dismissing the complaint because it timely mailed initial and follow-up verification requests and the provider undisputedly never responded, so the 30 days never began.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 151 (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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer's affidavits established timely mailing of its initial and follow-up verification requests.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
- 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.
- 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.
- 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.
- St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2011 NY Slip Op 00214) FollowedThe insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature.
Cited by
- Garden State Anesthesia Assoc., PA v Progressive Cas. Ins. Co. (2013 NY Slip Op 23332)Outstanding verification tolls payment only if it bears a rational or reasonable relationship to the specific provider's claim.
Similar decisions
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- All Boro Psychological Services, P.C. v Auto One Ins. Co. (2012 NY Slip Op 50777(U))A provider that misses discovery objection deadlines must respond except as to privileged or palpably improper demands.
- Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.
- Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))The insurer failed to establish timely mailing of its denials, and the provider failed to establish entitlement to payment as a matter of law.
- Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51244(U))The provider failed to establish its prima facie case, while the insurer proved timely denial of the second claim.