March 16, 2009
Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. (2009 NY Slip Op 50456(U))
https://www.beynensonlaw.com/case-law/audobon-physical-med-rehab-p-c-v-geico-ins-co-2009-ny-slip-op50456u/
- Decided
- March 16, 2009
- Citation
- 2009 NY Slip Op 50456(U) · 22 Misc 3d 141(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 Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. (2009 NY Slip Op 50456(U))
| Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. |
| 2009 NY Slip Op 50456(U) [22 Misc 3d 141(A)] |
| Decided on March 16, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and STEINHARDT, JJ
2008-16 Q C.
against
GEICO Insurance Company, Appellant-Respondent.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 19, 2006. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action. The order, insofar as cross-appealed from by defendant as limited by its brief, denied its application in the Civil Court to search the record and grant defendant summary judgment dismissing plaintiff’s first cause of action.
Order modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted; as so modified, affirmed without costs and matter remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, and while it did not cross-move for any relief, it requested that the court search the record and grant it summary judgment. The Civil Court denied plaintiff’s motion and, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s second cause of action on the ground that it was premature. Plaintiff appeals from said order. Defendant cross-appeals, arguing that, upon the search of the record, the court should have granted defendant summary judgment dismissing plaintiff’s first cause of action on the ground that it too was premature (see Coleman v Hayes, 294 AD2d 458 [2002]).
Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, [*2]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]). We note that the affidavit submitted by plaintiff’s corporate officer demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Defendant established that its requests for verification and follow-up verification of the claim upon which plaintiff’s second cause of action was based, were timely mailed by setting forth the office practices or procedures used to ensure that such 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]). Inasmuch as plaintiff did not demonstrate that it provided defendant with the verification sought by defendant in its verification and follow-up verification requests, the Civil Court, under the circumstances presented, upon searching the record, properly granted defendant summary judgment dismissing plaintiff’s second cause of action, since said cause of action is premature as payment upon this claim is not overdue (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] [failure to respond to request and follow-up request for verification renders action premature]).
It is uncontroverted that defendant received plaintiff’s claims for the services upon which plaintiff’s first cause of action is based and issued timely NF-10 denial of claim forms, which denied said claims due to the alleged failure of the assignor to attend independent medical examinations (IMEs). However, the affidavit submitted by the general manager/marketing director for the company defendant employed to issue verification requests on its behalf was insufficient to show that any verification requests for IMEs were mailed and that the assignor failed to appear at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to raise a triable issue of fact, and plaintiff is entitled to summary judgment upon its first cause of action (id.).
Accordingly, plaintiff’s motion for summary judgment upon its first cause of action is granted and the matter is remanded to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon said cause of action pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 16, 2009
Legal questions (4)
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: Different mailing results for different documents or claims in one decision
Found the insurer's office-practice proof established timely mailing of verification requests for one claim, but held its scheduler's affidavit insufficient to show the IME requests were mailed for the other.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (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
Held the scheduling company manager's affidavit insufficient to show the IME requests were mailed or that the assignor failed to appear, so the insurer raised no triable issue.
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Held the second cause of action premature because the insurer proved timely mailed verification and follow-up requests and the provider did not show it supplied the verification.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 151 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established its prima facie case, its officer's affidavit laying a CPLR 4518 foundation making the claim forms admissible, so the burden shifted to the insurer.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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.
- 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.
- 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.
- Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
- Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
- We Care Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50831(U))The provider's billing proof supported its first claim; an unrebutted peer review defeated its third claim on medical necessity.
- Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51822(U))The insurer proved the assignor's IME nonappearances but failed to establish its fee schedule defense for other claims.