June 11, 2010
Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))
https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-geico-ins-co-2010-ny-slip-op-51053u/
- Decided
- June 11, 2010
- Citation
- 2010 NY Slip Op 51053(U) · 27 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
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 Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))
| Alur Med. Supply, Inc. v GEICO Ins. Co. |
| 2010 NY Slip Op 51053(U) [27 Misc 3d 142(A)] |
| Decided on June 11, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-627 K C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 17, 2008, deemed from a judgment of the same court entered December 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $730.50.
ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (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]). [*2]
In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.
Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010
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.
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 submitted (mailed to and received by the insurer)
Held the provider failed to establish its prima facie case because its billing manager's affidavit conflicted with the annexed certificate of mailing showing the claim form was mailed to a different insurer.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider did not prove submission of the claim because the certificate of mailing referred to in its billing manager's affidavit showed the claim form was mailed to a different insurer.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))The provider failed to prove claim submission because its billing-manager affidavit contradicted the post office ledger on which it relied.
Cited by
- Golden Needle Acupuncture P.C. v MAPFRE Ins. Co. (2016 NY Slip Op 26411)The insurer's recorded-statement requests and nonspecific delay letters did not toll the 30-day period to pay or deny claims.
Similar decisions
- Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))The provider's action was premature because it began before responses to timely verification requests were served.
- Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))The insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim.
- Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.
- Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion.
- Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 51332(U))The insurer's unrebutted peer reviews defeated the provider's summary judgment motion on the three medical-supply claims under review.