February 14, 2011
ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50184(U))
https://www.beynensonlaw.com/case-law/arco-med-ny-p-c-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op50184u/
- Decided
- February 14, 2011
- Citation
- 2011 NY Slip Op 50184(U) · 30 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Contrasted (cf., but see) in 1 later decision (see Cited by)
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 ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50184(U))
| ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2011 NY Slip Op 50184(U) [30 Misc 3d 137(A)] |
| Decided on February 14, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-1733 K C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), dated June 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiffs’ cross motion for summary judgment.
ORDERED that the order is modified by providing that plaintiffs’ cross motion for summary judgment 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, defendant moved
for summary judgment dismissing the complaint based upon the
failure of plaintiffs’ assignor to attend independent medical examinations (IMEs) which
were scheduled by Crossland Medical Services, P.C. (Crossland). Plaintiffs cross-moved for
summary judgment. The Civil Court denied defendant’s motion and granted plaintiffs’ cross
motion, finding that defendant had failed to establish the mailing of the IME scheduling letters.
The instant appeal by defendant ensued.
The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland’s standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent’s [*2]Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Accordingly, the Civil Court properly denied defendant’s motion for summary judgment.
However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs’ supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 14, 2011
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 submitted (mailed to and received by the insurer)
Held the providers made no prima facie case because their billing supervisor's affidavit concerned the claims in another action, not the claims at issue.
Of the 1,063 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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer's affidavits failed to show the IME scheduling letters were mailed under the scheduling vendor's standard office practice or that the affiants personally mailed them.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Affirmed denial of the insurer's no-show motion because its affidavits did not establish mailing of the IME scheduling letters by the vendor's standard practice or by personal mailing.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Cited by
A label shows how the later decision treated this one.
- Jersey Rehab PA, P.C. v IDS Prop. Cas. Ins. Co. (2013 NY Slip Op 50652(U)) Contrasted (cf., but see)An IME demand must advise the applicant of reimbursement for lost earnings and reasonable transportation expenses to support a no-show defense.
Similar decisions
- Arco Med. NY, P.C. v AIG Indem. Ins. Co. (2014 NY Slip Op 51257(U))The insurer established timely mailing of the IME notices and denials and the assignor's failure to appear for the scheduled IMEs. The providers sought assigned no-fault benefits, and the insurer moved for summary judgment on the claims denied for IME nonappearance.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.
- Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50633(U))The insurer's scheduling-company affidavit established timely mailing of the IME notices under standard office mailing practices.
- Arco Med. NY, P.C. v Country-Wide Ins. Co. (2012 NY Slip Op 51815(U))The providers' affidavit failed to establish their prima facie entitlement to summary judgment on the unpaid no-fault bills.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.