November 19, 2015

Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-farm-family-cas-ins-co-2015-ny-slip-op51704u/

Court: Appellate Term, Second Department
Decided: November 19, 2015
Citation: 2015 NY Slip Op 51704(U)
Posture: Summary judgment
Outcome: Split result
Issues: EUO no-show Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Compas Med., P.C. v Farm Family Cas. Ins. Co., 2015 NY Slip Op 51704(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 lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion. For the first and third causes of action, the insurer offered no witness with personal knowledge of the assignor's nonappearance. The provider also failed to establish untimely payment or denial, or timely denials that were conclusory, vague or legally meritless. For the fourth through sixth causes of action, competing affidavits concerning mailing and nonreceipt created a factual issue over whether the time to pay or deny began. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer dismissal of the first and third causes and otherwise affirmed, including the limitation of trial to mailing on the fourth through sixth causes.

Reported in New York Official Reports at Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))

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

Compas Medical, P.C. as Assignee of JONATHAN JOSEPH, Appellant,
against
Farm Family Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied; 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. Insofar as is relevant to this appeal, by order entered February 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim forms underlying plaintiff’s fourth through sixth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claim ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; 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]). As a result, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment on its fourth through sixth causes of action.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and third causes of action, defendant failed to submit proof by [*2]someone with personal knowledge of the nonappearance of plaintiff’s assignor for the examination under oath which was to occur on March 23, 2011. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first and third causes of action (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Contrary to plaintiff’s contention, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action were properly denied, as plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013], affd 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied.

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

Decision Date: November 19, 2015

Legal questions (3)

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 on two claims because its papers did not show the claims were not paid or denied within 30 days or that timely denials were conclusory, vague or meritless.

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the provider owner's affidavit showed mailing of three claim forms while the insurer's affidavit sufficiently showed non-receipt, leaving an issue of fact whether the time to pay or deny began to run.

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

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer not entitled to summary judgment on its EUO no-show defense because it submitted no proof by anyone with personal knowledge of the assignor's nonappearance.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

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

Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U)) FollowedThe insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established.
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.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
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.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A 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.

Cited by

Milky Way Acupuncture, P.C. v Nationwide Ins. (2019 NY Slip Op 51968(U))The provider's renewal affidavit failed to identify the insurer to which it claimed to have resubmitted the bills.

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. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
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.
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 Farmington Cas. Co. (2016 NY Slip Op 50925(U))The insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims.