June 29, 2006
Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))
https://www.beynensonlaw.com/case-law/contemporary-acupuncture-p-c-v-travelers-ins-co-2006-ny-slip-op-51278u/
- Decided
- June 29, 2006
- Citation
- 2006 NY Slip Op 51278(U) · 12 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))
| Contemporary Acupuncture P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 51278(U) [12 Misc 3d 137(A)] |
| Decided on June 29, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1340 N C.
against
Travelers Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Howard S. Miller, J.), dated May 9, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon completion of discovery and granted defendant’s cross motion to compel discovery.
Appeal from so much of the order as granted defendant’s cross motion to compel discovery dismissed.
Order, insofar as reviewed, modified by providing that plaintiff’s motion for summary judgment is denied and by striking the provision thereof granting plaintiff leave to renew said motion; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff health care provider failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]), neither of which was demonstrated in the instant case (see generally New York & Presbyt. Hosp. v Allstate Ins. [*2]Co., ___ AD3d ___, 2006 NY Slip Op 03558). Plaintiff’s submissions in support of its motion, consisting of an affirmation of counsel without personal knowledge that the claim forms were actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), accompanied by an affidavit of a corporate officer of plaintiff provider, which made no specific reference to the appended claim forms or to proof of mailing, but which merely stated that his file included the original proof of mailing, were insufficient to establish submission of the claim forms (see Dr. Patil, M.D. v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]). Moreover, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its reply affirmation a denial of claim form indicating that a claim was received by defendant is of no relevance since the denial form is not specifically referable to any of the instant claims. Under the circumstances, plaintiff’s motion for summary judgment should have been denied on the merits.
With respect to that branch of the order which granted defendant’s cross motion to compel discovery, since plaintiff failed to submit written opposition to the cross motion, said branch of the order is deemed to have been granted on default and the appeal therefrom by plaintiff, the defaulting party, must be dismissed (CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]).
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 29, 2006
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.
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 submitted (mailed to and received by the insurer)
Held the provider failed its prima facie case because counsel's affirmation and an officer's affidavit merely noting proof of mailing in the file did not establish submission, and an unrelated denial form did not show receipt.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
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 showed neither actual mailing nor a standard office mailing practice, and a denial form not referable to these claims did not establish the insurer's receipt.
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.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
- Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U)) FollowedThe provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit.
Similar decisions
- Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co. (2009 NY Slip Op 51395(U))The insurer established that it never received the provider's claims, and the provider failed to prove mailing.
- Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
- Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
- North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U))The provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.
- Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))The provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims.