August 5, 2015

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51216(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-allstate-ins-co-2015-ny-slip-op51216u/

Court: Appellate Term, Second Department
Decided: August 5, 2015
Citation: 2015 NY Slip Op 51216(U) · 48 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 48 Misc 3d 138(A), 2015 NY Slip Op 51216(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 failed to establish policy cancellation because it offered no proof that the cancellation letter was mailed to its insured. The provider's summary judgment motion also failed because its papers showed neither an untimely denial nor a timely denial that was conclusory, vague, or meritless as a matter of law under Insurance Law § 5106 (a). Although the insurer supplied a cancellation letter, it did not prove mailing as required by Vehicle and Traffic Law § 313 (1) (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both parties' summary judgment motions denied.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51216(U))

[*1]

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co.

2015 NY Slip Op 51216(U) [48 Misc 3d 138(A)]

Decided on August 5, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-389 Q C

Delta Diagnostic Radiology, P.C. as Assignee of CATHERINE WESTE, Appellant, August 5, 2015
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered September 24, 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 dismissing the complaint 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 deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Thus, plaintiff’s motion for summary judgment was properly denied.

However, as plaintiff argues on appeal, defendant failed to submit sufficient proof that the insurance policy at issue had been cancelled. While defendant submitted a copy of a cancellation letter, it did not submit any proof that the letter had been mailed to its insured as required by Vehicle and Traffic Law § 313 (1) (a). Therefore, defendant should not have been awarded summary judgment dismissing the complaint.

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: August 05, 2015

Legal questions

A question 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 moving papers did not show the insurer failed to deny the claim within 30 days or that a timely denial was conclusory, vague or without merit, so its motion was properly denied.

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

Cited in this decision

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

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

A label shows how the later decision treated this one.

Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co. (2018 NY Slip Op 51006(U)) FollowedThe insurer failed to establish collateral estoppel or valid policy cancellation in support of its lack-of-coverage defense.

Similar decisions

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.
Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))The assignor's alleged use of a fraudulent address raised a factual issue defeating the provider's summary judgment motion.
Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case.
Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 52501(U))The insurer's follow-up verification requests mailed on the 30th calendar day after its initial requests were premature and ineffective.
Delta Diagnostic Radiology, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51345(U))The insurer's investigator affidavit raised a coverage issue concerning an alleged fraud scheme, but neither side was entitled to summary judgment.