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June 23, 2004

East Way Chiropractic, P.C. v Allstate Ins. Co. (2004 NY Slip Op 50642(U))

https://www.beynensonlaw.com/case-law/east-way-chiropractic-p-c-v-allstate-ins-co-2004-ny-slip-op-50642u/

Court
Civil Court of the City of New York, Queens County
Judge
Timothy J. Dufficy, J.
Decided
June 23, 2004
Citation
2004 NY Slip Op 50642(U)
Posture
Trial
Outcome
Provider prevailed
Issues
Timeliness and preclusion Trial and evidence
Legal questions
Proof of mailing · Claimant's prima facie case at trial (see the maps)
Cite as
East Way Chiropractic, P.C. v Allstate Ins. Co., 2004 NY Slip Op 50642(U) (Civ Ct, Queens County 2004)

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 prove timely mailing of its denials because its witness lacked personal knowledge of the central mailing procedure. At a nonjury trial on four assigned claims, the provider established a prima facie case. The denials were timely on their face, but the adjuster's training-based testimony did not establish personal knowledge of actual mailing or the Texas facility's procedures. Under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), generating denials within 30 days was insufficient without timely mailing. The Civil Court, Queens County, awarded the provider the amounts sought on three claims and partial judgment on the fourth, with statutory interest and attorney fees.

Reported in New York Official Reports at East Way Chiropractic, P.C. v Allstate Ins. Co. (2004 NY Slip Op 50642(U))

[*1]
East Way Chiropractic, P.C. v Allstate Ins. Co.
2004 NY Slip Op 50642(U)
Decided on June 23, 2004
Civil Court Of The City Of New York, Queens County
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2004

Civil Court of the City of New York, Queens County



EAST WAY CHIROPRACTIC, P.C. ASSIGNEE OF JOHNNY CONCEPCION, CHARLES TAYLOR , CONNIE CHARLES AND JOSE MARTIN

against

ALLSTATE INSURANCE COMPANY, Defendant.

119001/02

Baker, Barshy & Neuwirth, LLP By: David M. Barshay Esq., Attorneys for plaintiff,1393 Veterans Memorial highway, Ste 21N New York,11788, (631) 979-2906; Short & Billy P.C., By: Ellen Burach-Zion Attorneys for defendant, 217 Broadway Ste 300 New York, N.Y., 10007.

Timothy J. Dufficy, J.

Plaintiff East Way Chiropractic P.C. brought this action against Allstate Insurance Company to recover four separate no-fault payments under a uniform contract of insurance. A non-jury trial was held before this court on May 25, 2004.

FINDINGS OF FACTS

Tammy Figueroa, testified she worked in the billing department for the plaintiff East Way Chiropractic for approximetly five years. She stated that she was responsible for entering data in a computer program for medical bills and was responsible for keeping patient files and billing files in the ordinary course of business.

Ms. Figueroa was familiar with the files of Johnny Concepcion, Charles Taylor, Connie Charles and Jose Martin. Before any assignments were accepted, the office practice was to verify the identity of the patient. Ms. Figureoa stated that no payments were made to the plaintiff East Way except for partial payments made on behalf of Connie Charles. The claim form, to wit “the NF3” and assignments were accepted into evidence except for Jose Martin’s assignment which could not be located.

ISSUES

After plaintiff established a prima facia case, the issue of a timely denial was raised by the plaintiff. The only proof submitted by the defendant was the “NF10” denials which were timely on their face. Defendant’s witness Hector Herrera testified that he was a claim adjuster for defendant Allstate Insurance Company for the past three years and was familiar with the Taylor, Martin and Charles no-fault files. Mr. Herrera received training as to the procedure used by Allstate when a claim is denied. Mr. Herrera testified that the information is entered into the network or main frame computer with a claim number and the injured party’s name. Mr. Herrera stated he was assigned to the instant claims a few days before trial. He testified through the in house training he learned how data is entered into the computer. Denial forms are mailed from a central office in Texas. Mr. Herrera testified through his training, he learned that the forms are mailed out the same day they are entered into the computer or at latest the next day, unless it was a Friday or a holiday weekend. On cross examination, Mr. Herrera admitted that he testified at a prior proceeding that he thought the mailing were done by a third party. However, Mr. Herrera was later permitted to correct his testimony at that proceeding. The court finds that Mr. Herrera [*2]lacks personal knowledge of the of the mailing procedure used in the Texas facility and in fact never visited or worked in the Texas office. No other evidence of a timely mailing was offered by defendant.

As pointed out by the plaintiff in their trial memorandum of law, the law is well settled in that for an insurer’s denial of claim form to be deemed timely pursuant to 11 NYCRR 65.15(g) (3) and Insurance Law§5106(a), the insurer must not only prove that it generated the denial document within thirty (30) days of receipt of the applicants claim, but that it also mailed the denial to the applicant within the same time period. See, Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 A.D.2d 374 (2nd Dept. 2001); A. B. Medical Services, PLC v. GEICO Ins., 2 Misc. 3rd 26 (APP. Term 2nd and 11th J.D. Dist. 2003). The court holds that personal knowledge of the actual mailing or at least personal knowledge of the actual procedure is required. See, S& M Supply Inc. V. GEICO Ins., 2003 N. Y. Slip Op. 51192 (U) (App. Term. 2nd and 11th J.D. Dist. 2003). In the case at bar, the witness did not have personal knowledge of the Texas mailing procedure and in fact never visited or worked at the Texas office. Therefore, the defendant failed to establish that the denials were timely mailed to the applicant within thirty (30) days.

Accordingly, judgment is awarded to the plaintiff for the amount sought in the complaint for services provided to Johnny Concepcion ($122.14), Charles Taylor ($1615.58), Jose Martin ($1916.46). As for the claim for services provided to Connie Charles partial judgment in the amount of $470.96. The plaintiff is directed to submit a judgment to the court together with statutory interest and attorney fees.

Dated: June 23, 2004 _________________________

TIMOTHY J. DUFFICY, J.C.C.

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.

Proof of mailing

Open the full map

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 after trial that the insurer failed to prove timely mailing of its denials because its adjuster lacked personal knowledge of the out-of-state mailing procedure, so denials timely on their face were insufficient.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,203
  • Trial courtsTrial 143
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 5 decisions (5 Insurer proved mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 80 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 73 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 9 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 102 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 20 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 67 decisions (55 Insurer proved mailing, 3 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 109 decisions (87 Insurer proved mailing, 13 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 77 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 27 decisions (12 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 74 decisions (6 Insurer proved mailing, 18 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 3 decisions (3 Insurer proved mailing)2026, Appellate Term: 7 decisions (2 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 17 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 4 decisions (2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 14 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 1 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

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.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Found the prima facie case established at trial through the biller's testimony about the patient and billing files and about nonpayment, with the claim forms and all but one assignment received in evidence.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 64
  • Trial courtsTrial 36
2008, Appellate Division: 1 decision (1 Other element missing)2006, Appellate Division: 1 decision (1 Other element missing)2010, Appellate Division: 1 decision (1 Business-record foundation lacking)2019, Appellate Term: 12 decisions (1 Proof sufficient, 11 Other element missing)2016, Appellate Term: 6 decisions (2 Proof sufficient, 4 Other element missing)2015, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2014, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Appellate Term: 8 decisions (4 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 2 Other element missing)2012, Appellate Term: 1 decision (1 Mailing/receipt not shown)2011, Appellate Term: 2 decisions (1 Overdue not shown, 1 Other element missing)2010, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Appellate Term: 11 decisions (1 Proof sufficient, 1 Overdue not shown, 9 Business-record foundation lacking)2008, Appellate Term: 1 decision (1 Business-record foundation lacking)2006, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2007, Appellate Term: 1 decision (1 Business-record foundation lacking)2017, Appellate Term: 3 decisions (3 Other element missing)2018, Appellate Term: 3 decisions (3 Other element missing)2020, Appellate Term: 2 decisions (1 Proof sufficient, 1 Other element missing)2022, Appellate Term: 1 decision (1 Other element missing)2025, Appellate Term: 1 decision (1 Other element missing)2017, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Trial courts: 2 decisions (1 Business-record foundation lacking, 1 Other element missing)2011, Trial courts: 1 decision (1 Mailing/receipt not shown)2010, Trial courts: 4 decisions (4 Proof sufficient)2008, Trial courts: 5 decisions (2 Proof sufficient, 1 Overdue not shown, 2 Business-record foundation lacking)2007, Trial courts: 2 decisions (1 Proof sufficient, 1 Business-record foundation lacking)2006, Trial courts: 9 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 1 Other element missing)2004, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2005, Trial courts: 1 decision (1 Proof sufficient)2009, Trial courts: 1 decision (1 Proof sufficient)2021, Trial courts: 1 decision (1 Proof sufficient)2022, Trial courts: 1 decision (1 Other element missing)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.

Similar decisions

  • Harbor Med. & Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50378(U))The insurer failed to prove timely mailing of its denials and was precluded from asserting its medical-necessity defense.
  • Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co. (2006 NY Slip Op 51740(U))The insurer failed to support its concurrent-care fee defense or prove mailing of the pre-claim IME scheduling letters.
  • Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 52257(U))The insurer established policy-limit exhaustion, which barred the provider's claim despite its challenge to the denial's timeliness.
  • Berman v Country-Wide Ins. Co. (2006 NY Slip Op 50977(U))The providers' late notice was excused because incorrect insurer information made timely filing impossible despite diligent efforts.
  • Style Acupuncture, P.C. v State-Wide Ins. Co. (2010 NY Slip Op 50089(U))An insurer's pending investigation of alleged provider fraud does not excuse an untimely denial of a no-fault claim.
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