May 6, 2013

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50762(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-new-york-cent-mut-fire-ins-co-2013-ny-slip-op50762u/

Court: Appellate Term, Second Department
Decided: May 6, 2013
Citation: 2013 NY Slip Op 50762(U) · 39 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 142(A), 2013 NY Slip Op 50762(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 provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion. In the assigned no-fault benefits action, the Civil Court denied the insurer's summary judgment motion and granted the provider's cross motion. The provider proved mailing of its claims and laid a foundation for the claim forms under CPLR 4518. The insurer's claims representative affidavit did not establish timely mailing of the denials. The insurer therefore failed to show that its defenses, including the asserted failure of the assignor to comply with a coverage condition precedent, escaped preclusion or raised a triable issue. The Appellate Term, Second Department, affirmed the provider's judgment.

Reported in New York Official Reports at Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50762(U))

[*1]

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50762(U) [39 Misc 3d 142(A)]

Decided on May 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1796 K C.

Compas Medical, P.C. as Assignee of MARAVEN MAGNY, Respondent, —
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered April 26, 2011, deemed from a judgment of the same court entered May 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2011 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,358.32.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which defendant’s appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant argues on appeal that plaintiff did not establish its prima facie entitlement to summary judgment because it failed to prove that the claims had been mailed to defendant and it failed to lay a foundation for its claim forms pursuant to CPLR 4518. Contrary to defendant’s [*2]arguments, plaintiff satisfied both of these prongs of its prima facie case (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists 2006]).

Furthermore, the affidavit of defendant’s claims representative failed to establish that defendant had timely mailed its denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defense that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and therefore failed to raise a triable issue of fact.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer, having failed to prove timely mailing of its denials, did not establish it was not precluded from its defense that the assignor failed to comply with a condition precedent to coverage.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case

Rejected the insurer's arguments that the provider failed to prove mailing of the claims and to lay a CPLR 4518 foundation, holding the provider satisfied both prongs of its prima facie case.

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, 511 (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 claims representative's affidavit failed to establish that the insurer timely mailed its denial of claim forms, so the insurer was precluded from most defenses.

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.

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co (2006 NYSlipOp 50491(U)) FollowedAn insurer's bill-of-particulars demand is improper when it seeks evidentiary material rather than amplification of the pleadings.
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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Similar decisions

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.
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. (2015 NY Slip Op 51408(U))The insurer established that the second claim was premature and the remaining claims were barred by IME and EUO nonappearance.
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 Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.