September 27, 2016

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51405(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-allstate-ins-co-2016-ny-slip-op51405u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51405(U)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Charles Deng Acupuncture, P.C. v Allstate Ins. Co., 2016 NY Slip Op 51405(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 insurer failed to establish timely mailing of its denials, and the provider failed to establish prima facie entitlement to judgment. The insurer's affidavit did not adequately describe an office practice ensuring timely mailing. That deficiency defeated summary judgment dismissing the first cause of action on a fee-schedule payment defense and the finding that denials were timely and properly mailed. The provider's affidavit established neither an untimely denial nor a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to the first cause of action and vacate the mailing finding, while affirming denial of the provider's motion.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51405(U))

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

Charles Deng Acupuncture, P.C., as Assignee of JOSEPH MONIEL, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 3, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s motion for summary judgment, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action and, upon denying the remaining branches of defendant’s motion for summary judgment, made, in effect, a finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied and by vacating the finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed; as so modified, 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion for summary judgment, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action, and, upon denying the remaining branches of defendant’s motion for summary judgment, made, in effect, a finding, among others, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate that the branch of its motion seeking summary judgment dismissing plaintiff’s first cause of action, which was based upon defendant’s allegation that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule, should have been granted, or that it is entitled to a finding for all purposes in the action that its denial of claim forms were timely and properly mailed.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion [*2]failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied and by vacating the finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

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

Decision Date: September 27, 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 failed its prima facie burden because its affidavit did not show the claim was not timely denied or that a timely denial was conclusory, vague or without merit.

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavit did not set forth a standard office practice ensuring timely mailing of the denials, so it was not entitled to summary judgment or a finding that the denials were properly mailed.

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, 257 (this one included) are in the same category.

Cited in this decision

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

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.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
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.

Similar decisions

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.
Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50829(U))The insurer failed to prove timely mailing of its fee-schedule denial covering the provider's second through fifth causes of action.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))The provider's summary judgment motion on one claim was denied on appeal because the propriety of the insurer's denial remained disputed.
Mind & Body Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50779(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.