September 9, 2011

Devonshire Surgical Facility v American Transit Insurance Company (2011 NY Slip Op 51660(U))

https://www.beynensonlaw.com/case-law/devonshire-surgical-facility-v-american-transit-insurance-company-2011-ny-slip-op-51660u/

Court: Appellate Term, First Department
Decided: September 9, 2011
Citation: 2011 NY Slip Op 51660(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Interest and attorney fees Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Devonshire Surgical Facility v American Transit Insurance Company, 2011 NY Slip Op 51660(U) (App Term, 1st Dept 2011)

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.

Statutory interest on overdue no-fault claims runs from 30 days after presentation for payment, subject to any applicable toll. The providers established mailing and receipt of prescribed billing forms and overdue payment under Insurance Law § 5106 (a); the insurer raised no triable issue. The Appellate Term, First Department, upheld summary judgment for the providers but modified the order to remand for calculation of interest. The court applied 11 NYCRR 65.15 (h) (1), now 65-3.9 (a), and directed consideration of any applicable toll under 11 NYCRR 65.15 (h) (3), now 65-3.9 (c). Whether tolling applied was left for consideration on remand; the order was otherwise affirmed.

Reported in New York Official Reports at Devonshire Surgical Facility v American Transit Insurance Company (2011 NY Slip Op 51660(U))

[*1]

Devonshire Surgical Facility v American Transit Insurance Company

2011 NY Slip Op 51660(U)

Decided on September 9, 2011

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570179/11.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Olga Mashurova, Plaintiffs-Respondents, – –

against

American Transit Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated October 26, 2009, which granted plaintiffs’ motion for summary judgment on the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), dated October 26, 2009, modified only to the extent of remanding the matter to Civil Court for calculation of statutory interest due plaintiffs in accordance with this decision; as modified, order affirmed, without costs.

We agree with Civil Court that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their claims for first-party no-fault benefits by submitting proof that the prescribed statutory billing forms had been mailed and received by defendant on January 22, 2001, and that payment was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]). In opposition, defendant failed to raise a triable issue. Thus, plaintiffs were properly granted summary judgment (see Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50512[U] [2011]), and are entitled to statutory interest from the date the claim became overdue, viz. “30 days after the claim[s] w[ere] presented to the defendant for payment” (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]; see Insurance Department Regulations [11 NYCRR] § 65.15[h][1] [now 65-3.9(a)]). We remand the matter to Civil Court for calculation of the appropriate interest due plaintiff on these claims, taking into account the applicability, if any, of the tolling provisions of Insurance Law § 5106(a) (see 11 NYCRR 65.15[h][3] [now 65-3.9(c)]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: September 09, 2011

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

Held the providers made their prima facie showing by proof that the statutory billing forms were mailed to and received by the insurer and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownOther element missingThis decisionCites it or cited by itCited or followed

Of the 47 decisions on this question in the First Department courts and the Court of Appeals, 41 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)The insurer's verified interrogatory answers established receipt and partial payment of the claims and defeated its proof-of-billing objection.
Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50512(U)) FollowedThe providers proved overdue claims, and the insurer raised no triable issue after evidence preclusion under a stipulation.
LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 02481)No-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling.
Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 27323)No-fault interest is tolled upon receipt of a denial if the claimant does not sue or seek arbitration within 30 days.

Similar decisions

Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U))The providers established overdue claims, and the insurer's late denials and discovery preclusion left no triable issue.
A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51520(U))The provider's failure to prosecute after denial of summary judgment justified tolling no-fault statutory interest.
A.M. Med. Servs., P.C. v Travelers Ins. Co. (2020 NY Slip Op 50459(U))The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial.
Hilda-Bloor Med., P.C. v MVAIC (2013 NY Slip Op 50382(U))MVAIC failed to defeat the provider's entitlement to benefits, but statutory interest required recalculation for possible tolling.
Parsons Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 52328(U))Statutory interest on these timely denied no-fault claims accrued from completed service of the complaint, rather than filing.