March 16, 2015

Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-21st-century-ins-co-2015-ny-slip-op50388u/

Court: Appellate Term, Second Department
Decided: March 16, 2015
Citation: 2015 NY Slip Op 50388(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 8 later decisions (see Cited by)
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

Compas Med., P.C. v 21st Century Ins. Co., 2015 NY Slip Op 50388(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established. The provider's papers did not establish an overdue claim or a timely denial lacking legal merit under Insurance Law § 5106 (a), so its summary judgment motion remained denied. For the third cause, the insurer's nonreceipt affidavit conflicted with the owner's proof of mailing, creating a factual issue about when the payment-or-denial period began. For the remaining causes, employee affidavits showed pickup by third-party mailing services but did not establish those services' standard mailing procedures. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion in full and otherwise affirmed.

Reported in New York Official Reports at Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U))

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

Compas Medical, P.C. as Assignee of MARYANN ANYANWU, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 Insurance Law § 5106 [a]; 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 (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim underlying plaintiff’s third cause of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant is not entitled to summary judgment dismissing plaintiff’s third cause of action.

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s remaining causes of action, defendant submitted affidavits from a number of its employees. The affidavits set forth that envelopes containing the underlying NF-10 denial of claim forms were picked up by third-party mailing services to be taken to the post office. However, defendant failed to demonstrate the existence of a standard office practice and procedure utilized by the third-party mailing services so as to given rise to a presumption that the envelopes had been mailed (see Health Needles Acupuncture, P.C. v United Servs. Auto. Assn., 39 Misc 3d 134[A], 2013 NY Slip Op 50537[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant was not entitled to summary judgment dismissing plaintiff’s remaining causes of action.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.

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

Decision Date: March 16, 2015

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 motion failed because its papers did not show the claims were not paid or denied within 30 days or that timely denials were 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 1,065 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

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

Held the insurer's affidavits showing denial envelopes were picked up by third-party mailing services insufficient because they did not describe those services' standard mailing practice; the provider's mailing affidavit also raised a fact issue on one claim.

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, 260 (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.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U)) Contrasted (cf., but see)The insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address.
Infinity Health Prods., Ltd. v Redland Ins. Co. (2013 NY Slip Op 50751(U))The insurer failed to establish proper IME scheduling because notices used an incorrect ZIP code and counsel's representation was unproved.

Cited by

A label shows how the later decision treated this one.

Island Life Chiropractic, P.C. v Country Wide Ins. Co. (2016 NY Slip Op 51378(U)) FollowedThe 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)) FollowedConflicting 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)) FollowedThe 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)) FollowedThe insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U)) FollowedConflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run.
Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50198(U)) FollowedMVAIC's payment log failed to establish exhaustion of available coverage because it omitted claim receipt and full verification dates.
Sama Physical Therapy, P.C. v Global Liberty Ins. (2017 NY Slip Op 51736(U)) FollowedThe insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims.
VS Sunrise Med., P.C. v Global Liberty Ins. (2020 NY Slip Op 51370(U)) FollowedConflicting proof of mailing and receipt of claim forms precluded summary judgment on the provider's second and third causes of action.
Progressive Health Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50603(U))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 Farm Family Cas. Ins. Co. (2015 NY Slip Op 51631(U))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.

Similar decisions

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51240(U))Conflicting proof of claim receipt and verification responses precluded summary judgment for either party.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51824(U))The insurer rebutted presumed receipt of one claim, leaving a factual issue, and proved IME and EUO nonappearances on the remaining claims.
Compas Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51000(U))The insurer failed to establish its fraudulent-procurement defense, and the provider raised a factual issue about outstanding verification.