August 18, 2016

Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51244(U))

https://www.beynensonlaw.com/case-law/bay-ls-med-supplies-inc-v-allstate-ins-co-2016-ny-slip-op51244u/

Court: Appellate Term, Second Department
Decided: August 18, 2016
Citation: 2016 NY Slip Op 51244(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Bay LS Med. Supplies, Inc. v Allstate Ins. Co., 2016 NY Slip Op 51244(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 its prima facie case, while the insurer proved timely denial of the second claim. The provider's papers established neither nonpayment or denial within 30 days nor a timely denial that was legally insufficient under Insurance Law § 5106 (a). For the second cause, the insurer's investigator described mailing procedures and supplied a certified-mail receipt bearing the claim number. The provider submitted no opposing affidavit and did not challenge the CPLR 3212 (g) finding that the insurer was otherwise entitled to dismissal. The Appellate Term, Second Department, reversed the judgment, vacated the provider's summary judgment on the first cause and denied that motion branch, and reversed the order, insofar as appealed from, granting the insurer summary judgment dismissing the second cause.

Reported in New York Official Reports at Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51244(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Bay LS Medical Supplies, Inc., as Assignee of JOSE DIAZ, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 16, 2013. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action; upon denying the branch of plaintiff’s motion seeking summary judgment upon the second cause of action, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor; and denied the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action. So much of the notice of appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is deemed to be from a judgment of the same court entered February 13, 2013 awarding plaintiff the principal sum of $750 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered January 16, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the first cause of action is vacated, and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal and insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action; denied the branch of plaintiff’s motion seeking summary judgment upon the second cause of action; denied defendant’s cross motion; and made, in effect, CPLR 3212 (g) findings that the only remaining issue for trial upon the second cause of action was defendant’s proof of mailing with respect to the denial of claim form. A judgment was subsequently entered on February 13, 2013 awarding plaintiff the principal sum of $750. On appeal, defendant argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and that the branch of its cross motion for summary judgment dismissing the second cause of action should have been granted.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that 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]; Ave T MPC [*2]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]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment on its first cause of action should have been denied.

In support of the branch of its cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its special investigator which set forth the standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff, and defendant also submitted a copy of the certified mail return receipt card bearing the subject claim number, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff failed to submit an affidavit in opposition to defendant’s cross motion, defendant’s proof that the denial of claim form had been timely mailed to plaintiff was unrebutted. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment dismissing the second cause of action, so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action is reversed and that branch of defendant’s cross motion is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the judgment is reversed, so much of the order entered January 16, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the first cause of action is vacated, and that branch of plaintiff’s motion is denied. In addition, the order, insofar as reviewed on direct appeal and insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 18, 2016

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.

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's moving papers failed to show that the insurer did not pay or deny within 30 days or issued a conclusory, vague or meritless denial, so summary judgment on the first cause was vacated.

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the investigator's affidavit describing the standard mailing practice by which he mailed the denial, plus a signed certified-mail return receipt bearing the claim number, established unrebutted timely mailing of the denial.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
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.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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

All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action.
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.
Right Solution Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51860(U))The insurer established IME nonappearances for two claims and outstanding verification that made a third claim premature.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50488(U))Unanswered verification requests kept eight claims premature despite a follow-up mailed before the full response period expired.