November 12, 2015
EMA Acupuncture v Statewide Ins. Co. (2015 NY Slip Op 51622(U))
https://www.beynensonlaw.com/case-law/ema-acupuncture-v-statewide-ins-co-2015-ny-slip-op-51622u/
- Decided
- November 12, 2015
- Citation
- 2015 NY Slip Op 51622(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 EMA Acupuncture v Statewide Ins. Co. (2015 NY Slip Op 51622(U))
| EMA Acupuncture v Statewide Ins. Co. |
| 2015 NY Slip Op 51622(U) |
| Decided on November 12, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570432/15
against
Statewide Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), dated March 20, 2009, which granted plaintiff’s motion for summary judgment on the complaint.
Per Curiam.
Order (Julia I. Rodriguez, J.), dated March 20, 2009, affirmed, with $10 costs.
In opposition to plaintiff’s prima facie showing of entitlement to judgment as a matter of law on its complaint to recover first-party no-fault benefits (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), defendant failed to raise a triable issue. While defendant contended that the claim was premature because plaintiff failed to respond to its verification requests, the affidavit of defendant’s no-fault claims supervisor, who had no personal knowledge that the verification letters were actually mailed, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Co., 45 AD3d 676, 677 [2007]). Accordingly, Civil Court properly granted plaintiff’s motion for summary judgment. In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 12, 2015
Legal questions (3)
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.
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 the insurer's supervisor's affidavit insufficient to show mailing of verification letters because she lacked personal knowledge of mailing and described office mailing practices only in the most general terms.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 23 (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.
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
Rejected the prematurity defense because the insurer offered no adequate proof that its verification requests were mailed, so it raised no issue of fact.
Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 7 (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.
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 (rules on the question, but another ground decided the case)
Held the provider made its prima facie showing of entitlement to judgment, so the burden shifted to the insurer, which failed to raise a triable issue.
Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 45 (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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024) FollowedThe insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms.
Similar decisions
- EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U))The insurer failed to prove the provider's EUO nonappearances through evidence from anyone with personal knowledge.
- EMA Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51400(U))The provider's acupuncturist affidavit failed to meaningfully address or rebut the insurer's IME findings of no medical necessity.
- EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51428(U))The insurer was granted summary judgment dismissing the complaint based on the assignor's failure to attend duly scheduled IMEs. The Appellate Term, Second Department, affirmed, finding the insurer's proof sufficient to establish presumptive mailing of the IME scheduling letters and denial forms and the assignor's nonappearance.
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.