May 25, 2018

FEMA Med. Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50782(U))

https://www.beynensonlaw.com/case-law/fema-med-supply-inc-v-country-wide-ins-co-2018-ny-slip-op50782u/

Court: Appellate Term, Second Department
Decided: May 25, 2018
Citation: 2018 NY Slip Op 50782(U) · 59 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

FEMA Med. Supply, Inc. v Country-Wide Ins. Co., 59 Misc 3d 148(A), 2018 NY Slip Op 50782(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 provider failed to establish as a matter of law that it mailed its bills to the insurer. To obtain summary judgment for assigned no-fault benefits, a provider must show submission of its bills and either nonpayment or failure to deny within 30 days, or a timely denial that is conclusory, vague or legally meritless. Because the provider did not establish mailing, it failed to demonstrate entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.

Reported in New York Official Reports at FEMA Med. Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50782(U))

[*1]

FEMA Med. Supply, Inc. v Country-Wide Ins. Co.

2018 NY Slip Op 50782(U) [59 Misc 3d 148(A)]

Decided on May 25, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-710 Q C

FEMA Medical Supply, Inc., as Assignee of Erickson Gil, Jesus Rodrigo-Garcia, Darrell Belton, Colin Noel and Jesus Hernandez-Garcia, Appellant,
against
Country-Wide Insurance Company, Respondent.

Amos Weinberg, for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 29, 2015. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A provider establishes its entitlement to summary judgment by demonstrating that its bills were submitted to the insurer and either that they were not paid or denied within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial that was conclusory, vague or without merit as a matter of law (see 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 Dept, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff failed to establish, as a matter of law, [*2]that it had mailed its bills to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018

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.

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 submitted (mailed to and received by the insurer)

Held the provider's motion properly denied because it failed to establish as a matter of law that it had mailed its bills to the insurer.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response

Held the provider's proof did not establish as a matter of law that it mailed its bills to the insurer, so its summary judgment motion failed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (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) 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 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.
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

Fema Med. Supply, Inc. v American Commerce Ins. Co. (2017 NY Slip Op 51160(U))The provider's summary judgment motion was denied because it failed to establish untimely or legally insufficient denials.
TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
(2014 NY Slip Op 51267(U))The provider's unopposed summary judgment motion was denied for failure to prove overdue payment or a legally deficient denial.
Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2015 NY Slip Op 51472(U))The provider's summary judgment motion was denied because it failed to establish prima facie entitlement on its no-fault claim.
Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.