September 19, 2016

Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))

https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-21st-century-ins-co-2016-ny-slip-op51347u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51347(U) · 53 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Proof of mailing · Claimant's prima facie case on motions (see the maps)

Cite as

Alleviation Med. Servs., P.C. v 21st Century Ins. Co., 53 Misc 3d 128(A), 2016 NY Slip Op 51347(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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.

Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run. The insurer's claims representative submitted an affidavit sufficient to establish nonreceipt of the claim, while the provider's owner's affidavit demonstrated that the claim form had been mailed. Neither party was therefore entitled to summary judgment in the action for assigned no-fault benefits. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed the denial of the provider's motion.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))

[*1]

Alleviation Med. Servs., P.C. v 21st Century Ins. Co.

2016 NY Slip Op 51347(U) [53 Misc 3d 128(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2223 Q C

Alleviation Medical Services, P.C., as Assignee of DIONISIA RODRIGUEZ, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim at issue. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, neither defendant nor plaintiff is entitled to summary judgment.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer's affidavit established non-receipt of the claim while the provider owner's affidavit demonstrated mailing, creating an issue of fact as to receipt so neither party obtained summary judgment.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Treated the provider owner's affidavit as demonstrating mailing of the claim form, but denied summary judgment because the insurer's proof of non-receipt raised an issue of fact whether its time to pay or deny began.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

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

Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U)) FollowedThe insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established.

Cited by

Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))The provider's renewal affidavit failed to identify the insurer to which it claimed to have resubmitted the bills.

Similar decisions

Alleviation Med. Servs., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51628(U))The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless.
Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
Alleviation Med. Servs., P.C. v Geico Ins. Co. (2015 NY Slip Op 50396(U))The provider's unopposed motion failed because its papers did not establish an overdue claim or a timely denial lacking legal merit.
Alleviation Med. Servs., P.C. v Farmers New Century Ins. Co. (2016 NY Slip Op 50379(U))The insurer's IME nonappearance defense was precluded on the first claim because it failed to deny within 30 days or establish tolling.