March 11, 2016
EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))
https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-allstate-ins-co-2016-ny-slip-op50313u/
- Decided
- March 11, 2016
- Citation
- 2016 NY Slip Op 50313(U) · 50 Misc 3d 147(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (see the maps)
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 EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))
| EMC Health Prods., Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 50313(U) [50 Misc 3d 147(A)] |
| Decided on March 11, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1456 K C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 13, 2013. The order granted plaintiff’s motion for summary judgment.
ORDERED that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action are 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 moved for summary judgment. By order entered May 13, 2013, the Civil Court granted plaintiff’s motion.
Defendant’s contention—that plaintiff failed to make a prima facie showing of its entitlement to summary judgment because plaintiff did not establish that the supplies furnished by plaintiff had actually been delivered to plaintiff’s assignor and by whom they had been delivered—lacks merit, as it is not part of plaintiff’s prima facie case to establish these facts (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). Since defendant has raised no other issue in the Civil Court or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.
Defendant argues that plaintiff’s motion should have been denied because defendant raised a triable issue of fact by demonstrating that it had timely denied plaintiff’s claims on the grounds of lack of medical necessity and that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule. We find that defendant’s opposition papers were sufficient to establish that the denial of claim forms pertaining to the claims underlying the third and fourth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action should have been denied, as defendant in its opposition papers raised triable issues of fact with respect to these causes of action. However, as defendant failed to establish that it had timely mailed the denial of claim forms pertaining to the claims underlying the first and second causes of action, there is no basis to disturb so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon these causes of action.
Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action are denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016
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.
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
Rejected the insurer's argument that the provider had to prove delivery of the supplies to the assignor and by whom, holding those facts are not part of the provider's prima facie case.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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: Different mailing results for different documents or claims in one decision
Held the insurer's opposition established timely mailing of the denials for two causes of action, raising triable issues, but failed to establish timely mailing of the denials for the other two, which stayed granted.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.
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)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Similar decisions
- EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
- EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))The insurer's summary judgment cross motion was denied on appeal because medical necessity presented a triable issue of fact.
- EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
- Emc Health Prods., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50132(U))The provider's employee affidavit raised a triable issue over whether requested verification had been mailed to and received by the insurer.
- Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment.