July 5, 2013

Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))

https://www.beynensonlaw.com/case-law/bright-med-supply-co-v-tri-state-consumer-ins-co-2013-ny-slip-op51122u/

Court: Appellate Term, Second Department
Decided: July 5, 2013
Citation: 2013 NY Slip Op 51122(U) · 40 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 10 and followed in 2 later decisions (see Cited by)
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130(A), 2013 NY Slip Op 51122(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address. The insurer's claims representative supplied an affidavit establishing that the claim had never been received. The provider's opposition did not establish proper mailing sufficient to create a presumption of receipt, and the insurer demonstrated that the Philadelphia post office box allegedly used was not its address. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.

Reported in New York Official Reports at Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))

[*1]

Bright Med. Supply Co. v Tri State Consumer Ins. Co.

2013 NY Slip Op 51122(U) [40 Misc 3d 130(A)]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 5, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2144 K C.

Bright Medical Supply Co. as Assignee of ROSHEL PAKANAYEV, Respondent, —
against
Tri State Consumer Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered May 27, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that it had never received the claim at issue. The Civil Court denied defendant’s motion.

The affidavit of defendant’s claims representative established that defendant had never received the claim in question from plaintiff. Not only was plaintiff’s opposition to defendant’s motion insufficient to demonstrate proof of proper mailing of the claim form, which would give rise to a presumption of receipt, but defendant demonstrated that the address to which plaintiff had allegedly mailed the claim, a post office box in Philadelphia, is not defendant’s address.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013

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.

Proof of mailing

Open the full map

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 opposition failed to show proper mailing of the claim form giving rise to a presumption of receipt, and the insurer showed the Philadelphia post office box it was allegedly sent to was not its address.

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

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.

Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U)) FollowedThe provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.

Cited by (12)

A label shows how the later decision treated this one.

Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U)) Contrasted (cf., but see)The insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established.
Island Life Chiropractic, P.C. v Country Wide Ins. Co. (2016 NY Slip Op 51378(U)) Contrasted (cf., but see)The insurer failed to prove mailing of a cancellation notice, and conflicting affidavits raised a factual issue over claim submission.
Parisien v Travelers Ins. Co. (2019 NY Slip Op 51895(U)) Contrasted (cf., but see)Conflicting proof of claim mailing and receipt precluded summary judgment and conclusive findings in the provider's favor.
Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U)) Contrasted (cf., but see)The provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U)) Contrasted (cf., but see)The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
Progressive Health Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50603(U)) Contrasted (cf., but see)The insurer failed to prove two IME nonappearances on one claim, and conflicting mailing evidence precluded summary judgment on another.
Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51240(U)) Contrasted (cf., but see)Conflicting proof of claim receipt and verification responses precluded summary judgment for either party.
Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U)) Contrasted (cf., but see)The provider's proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51631(U)) Contrasted (cf., but see)Delay letters requesting no specific verification did not toll the insurer's time to pay or deny the claim in the second cause of action.
VS Sunrise Med., P.C. v Global Liberty Ins. (2020 NY Slip Op 51370(U)) Contrasted (cf., but see)Conflicting proof of mailing and receipt of claim forms precluded summary judgment on the provider's second and third causes of action.

Show all 12 citing decisions

Similar decisions

Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))The insurer's conclusory nonreceipt affidavit failed to establish that the provider's claim was improperly or untimely submitted.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Bright Med. Supply Corp. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50536(U))The insurer's summary judgment appeal was dismissed as moot after it obtained dismissal of the complaint on reargument.
Bright Med. Supply Co. v GMAC Integon Ins. Co. (2012 NY Slip Op 51495(U))The insurer failed to show that the provider knew the terms of a TRO barring commencement of its no-fault action.
Skymed Med., P.C. v Tri-State Consumer Ins. (2014 NY Slip Op 51833(U))The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested material.