May 6, 2013
Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))
https://www.beynensonlaw.com/case-law/art-of-healing-medicine-p-c-v-new-york-cent-mut-fire-ins-co-2013-nyslip-op-50766u/
- Decided
- May 6, 2013
- Citation
- 2013 NY Slip Op 50766(U) · 39 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))
| Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2013 NY Slip Op 50766(U) [39 Misc 3d 142(A)] |
| Decided on May 6, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-2512 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 (Nancy M. Bannon, J.), entered July 14, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.
ORDERED that the order, insofar as appealed from, is modified, by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.
On appeal, defendant argues that it established that so much of the complaint as sought to recover on the claim for $2,619.20 should have been dismissed based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations, which is a breach of a condition precedent to coverage. However, defendant concededly did not deny the claim on that ground. Therefore, defendant failed to establish its entitlement to summary judgment with respect to the $2,619.20 claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
In support of its cross motion for summary judgment, plaintiff failed to prove the fact and the amount of the loss sustained, by demonstrating that the claim form annexed to its cross motion was admissible pursuant to CPLR 4518 (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]). Consequently, plaintiff failed to establish its prima facie case with respect to its $2,619.20 claim (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]).
Accordingly, the order, insofar as appealed from, is modified by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim.
Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 06, 2013
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer not entitled to summary judgment on its IME no-show defense, which it called a breach of a condition precedent to coverage, because it concededly never denied the claim on that ground.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on 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: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed to establish its prima facie case because it did not show the annexed claim form was admissible under CPLR 4518 to prove the fact and amount of the loss.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))The insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- 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.
- 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
- Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U))The insurer failed to prove timely denials preserving its fee-schedule defense, and the provider failed to establish entitlement to summary judgment.
- Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.
- Healing Art Acupuncture, P.C. v Maya Assur. Co. (2015 NY Slip Op 50387(U))The insurer failed to prove mailing of IME notices or that the provider's fee exceeded the workers' compensation fee schedule.
- BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))The provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))Neither party established entitlement to summary judgment on the claims reviewed after reargument.