May 18, 2015

Alleviation Med. Servs., P.C. v Hertz Co. (2015 NY Slip Op 50788(U))

https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-hertz-co-2015-ny-slip-op-50788u/

Court: Appellate Term, Second Department
Decided: May 18, 2015
Citation: 2015 NY Slip Op 50788(U) · 47 Misc 3d 151(A)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Alleviation Med. Servs., P.C. v Hertz Co., 47 Misc 3d 151(A), 2015 NY Slip Op 50788(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 failed to establish its prima facie case, and the defendant failed to establish a timely denial. Under Insurance Law § 5106 (a), the provider's motion papers did not show either a failure to pay or deny within 30 days or a timely denial that was conclusory, vague or without legal merit. The defendant, in turn, did not establish timely denial under 11 NYCRR 65-3.8. The Appellate Term, Second Department, modified the order to deny the defendant's cross motion for summary judgment dismissing the complaint and affirmed the denial of the provider's motion.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Hertz Co. (2015 NY Slip Op 50788(U))

[*1]

Alleviation Med. Servs., P.C. v Hertz Co.

2015 NY Slip Op 50788(U) [47 Misc 3d 151(A)]

Decided on May 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-221 K C

Alleviation Medical Services, P.C. as Assignee of GRETA MARTINELLI, Appellant,

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 14, 2012. 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.

Plaintiff’s motion was properly denied, as its moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period, or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]). However, defendant’s cross motion should also have been denied, as defendant failed to establish, as a matter of law, that it had timely denied the claim at issue (see 11 NYCRR 65-3.8).

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: May 18, 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 claimant's moving papers failed to show that the insurer did not pay or deny within 30 days or that a timely denial was conclusory, vague or without merit, so its motion was properly denied.

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

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 246 (this one included) are in the same category.

Cited in this decision

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A 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)The 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))The 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 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 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 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 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.