March 16, 2015

Alleviation Med. Servs., P.C. v Geico Ins. Co. (2015 NY Slip Op 50396(U))

https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-geico-ins-co-2015-ny-slip-op50396u/

Court: Appellate Term, Second Department
Decided: March 16, 2015
Citation: 2015 NY Slip Op 50396(U) · 47 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Alleviation Med. Servs., P.C. v Geico Ins. Co., 47 Misc 3d 128(A), 2015 NY Slip Op 50396(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

The provider's unopposed motion failed because its papers did not establish an overdue claim or a timely denial lacking legal merit. The provider sought summary judgment for assigned no-fault benefits. Its submissions did not show that the insurer failed to pay or deny within the 30-day period under Insurance Law § 5106 (a), or that a timely denial was conclusory, vague or without merit as a matter of law. The absence of opposition did not establish the provider's entitlement on this record. The Appellate Term, Second Department, affirmed denial of the provider's motion.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Geico Ins. Co. (2015 NY Slip Op 50396(U))

[*1]

Alleviation Med. Servs., P.C. v Geico Ins. Co.

2015 NY Slip Op 50396(U) [47 Misc 3d 128(A)]

Decided on March 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2344 K C

Alleviation Medical Services, P.C. as Assignee of RAYVON FREEMAN, Appellant,
against
Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 20, 2012. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 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 unopposed motion for summary judgment. We affirm.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]). Thus, contrary to plaintiff’s argument on appeal, the Civil Court properly found that plaintiff had failed to establish its entitlement to summary judgment.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015

Legal questions

A question 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.

Claimant's prima facie case on motions

Open the full map

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's unopposed motion properly denied because its papers did not show the claim was not paid or denied within 30 days or that a timely denial was conclusory, vague or without merit.

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, 247 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

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 21st Century Ins. Co. (2016 NY Slip Op 51347(U))Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run.
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., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51630(U))The provider's appellate arguments against dismissal for lack of a covered loss were raised for the first time on appeal.