December 28, 2006
Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))
https://www.beynensonlaw.com/case-law/boai-zhong-yi-acupuncture-servs-p-c-v-travelers-ins-co-2006-ny-slip-op-52516u/
- Decided
- December 28, 2006
- Citation
- 2006 NY Slip Op 52516(U) · 14 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
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 Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))
| Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 52516(U) [14 Misc 3d 129(A)] |
| Decided on December 28, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1959 K C.
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 16, 2005. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Here, the affidavit of plaintiff’s corporate officer and the proof of
mailing annexed thereto were insufficient to establish that plaintiff mailed its claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claim in question by attaching to its moving
papers a delay letter from defendant is unavailing since said letter did not specifically refer to the claim at issue in that it did not set forth the amount of the claim (see Impulse Chiropractic, P.C. v Travelers Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists]). Therefore, since plaintiff failed to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
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.
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 provider failed its prima facie burden because neither its officer's affidavit with the mailing proof nor counsel's affirmation established that the claim was submitted to the insurer.
Of the 1,065 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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider's officer's affidavit and annexed mailing proof did not show mailing, counsel lacked personal knowledge, and the insurer's delay letter did not prove receipt because it did not state the claim amount.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
- Impulse Chiropractic, P.C. v Travelers Ins. Co. (2006 NY Slip Op 52371(U)) FollowedThe provider failed to establish submission of the claim form because its affidavit and the insurer's acknowledgment were insufficient.
Similar decisions
- Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment.
- Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))The provider failed to establish claim submission because it proved neither actual mailing nor a reliable office mailing practice.
- Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51202(U))The insurer established timely mailing of verification requests, tolling the 30-day period and making its denials timely.
- Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))The provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims.
- Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.