July 14, 2009
D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U))
https://www.beynensonlaw.com/case-law/d-s-chiropractic-p-c-v-country-wide-ins-co-2009-ny-slip-op51584u/
- Decided
- July 14, 2009
- Citation
- 2009 NY Slip Op 51584(U) · 24 Misc 3d 138(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U))
| D.S. Chiropractic, P.C. v Country-Wide Ins. Co. |
| 2009 NY Slip Op 51584(U) [24 Misc 3d 138(A)] |
| Decided on July 14, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1189 Q C.
against
Country-Wide Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered April 9, 2008, deemed from a judgment of the same court entered May 29, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 9, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $829.84.
Judgment affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court
granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment. This appeal by defendant ensued. A
judgment was subsequently entered.
Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists [*2]2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claims, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]), defendant’s submissions in opposition to plaintiff’s motion for summary judgment and in support of the cross motion for summary judgment were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, the judgment is affirmed.
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009
Legal questions (4)
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: Claimant's proof held to make out its prima facie case
Held the billing manager's affidavit laid a sufficient CPLR 4518 foundation for the claim documents, and any gap in proof of mailing was cured by the insurer's claims representative conceding receipt.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient
Held the insurer's follow-up verification requests, mailed on the 30th day after the initial requests, were premature and without effect, so the 30-day period was not tolled and its denial was untimely.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (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 established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)
Held any deficiency in the provider's proof of mailing the claim forms was cured by the insurer's claims representative's affidavit conceding receipt of the claims.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it (rules on the question, but another ground decided the case)
Held the insurer's submissions failed to show its lack-of-coverage defense rested on a founded belief that the injuries did not arise from an insured incident, so the provider's summary judgment was affirmed.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (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.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
- Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
- Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U)) FollowedThe insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim.
- Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271) FollowedThe insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.
Cited by
A label shows how the later decision treated this one.
- Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156) FollowedThe provider proved mailing and receipt of its bill and the insurer's failure to pay or deny within 30 days; the insurer failed to raise a triable issue.
Similar decisions
- Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.
- New Century Chiropractic, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 52236(U))The insurer's investigator established a founded belief that the injuries did not arise from an insured incident, raising a coverage issue.
- First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50594(U))The provider's claims failed in part for outstanding verification and duplicate billing, while separate reimbursement remained disputed.
- South Nassau Orthopedic Surgery and Sports Medicine, P.C. v Auto One Ins. Co. (2011 NY Slip Op 51300(U))The insurer failed to establish timely denial mailing because its affidavit did not prove mailing practices during the relevant period.
- Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials.