July 5, 2011

Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))

https://www.beynensonlaw.com/case-law/ave-t-mpc-corp-v-auto-one-ins-co-2011-ny-slip-op-51292u/

Court: Appellate Term, Second Department
Decided: July 5, 2011
Citation: 2011 NY Slip Op 51292(U) · 32 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 141 later decisions (see Cited by)
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128(A), 2011 NY Slip Op 51292(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial. Under Insurance Law § 5106 (a), the provider needed to prove either failure to pay or deny within 30 days or a timely denial that was conclusory, vague, or without merit as a matter of law. It proved nonpayment but neither the absence of a denial nor a legally insufficient denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion.

Reported in New York Official Reports at Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))

[*1]

Ave T MPC Corp. v Auto One Ins. Co.

2011 NY Slip Op 51292(U) [32 Misc 3d 128(A)]

Decided on July 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 5, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-1751 Q C.

Ave T MPC Corp. as Assignee of JULIANA KOGAN, Appellant,
against
Auto One Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 4, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the 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]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claims were not paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form. Accordingly, the order, insofar as appealed from, is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: July 05, 2011

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 provider failed its prima facie burden because it proved only nonpayment and did not show that the insurer failed to deny the claim or issued a legally insufficient denial.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

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.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.

Cited by (245)

A label shows how the later decision treated this one.

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.
Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U)) FollowedThe insurer established proper recoding of physical therapy services but failed to justify Ground Rule 11 reductions on three claims.
Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U)) FollowedThe provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.
JFL Med. Care, P.C. v MVAIC (2024 NY Slip Op 50202(U)) FollowedMVAIC failed to establish coverage exhaustion because it omitted the dates claims were received and fully verified.
K.O. Med., P.C. v Mercury Cas. Co. (2017 NY Slip Op 51614(U)) FollowedA default declaratory judgment denying no-fault coverage barred the provider's action under res judicata.
JPF Med. Servs., P.C. v Nationwide Ins. (2020 NY Slip Op 51122(U)) FollowedThe insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation.
Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U)) FollowedNeither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
Compas Med., P.C. v MVAIC (2014 NY Slip Op 50465(U)) FollowedMVAIC failed to establish that the assignor was not a New York resident, while the provider failed to establish its prima facie case.
GL Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51239(U)) FollowedThe insurer failed to prove effective cancellation against an assignor outside the named insured's household because timely DMV filing was unproved.

Show all 245 citing decisions

Similar decisions

Ave T MPC Corp. v Travelers Prop. Cas. Ins. Co. (2012 NY Slip Op 50232(U))The provider's erroneous statement that discovery was complete warranted striking its no-fault action from the trial calendar.
Ave T MPC Corp. v Amica Mut. Ins. Co. (2010 NY Slip Op 52009(U))The provider's action was premature because the insurer had received no claim forms before suit commenced.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.