November 17, 2006
Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 52270(U))
https://www.beynensonlaw.com/case-law/forrest-chen-acupuncture-servs-p-c-v-nationwide-mut-ins-co-2006-ny-slip-op-52270u/
- Decided
- November 17, 2006
- Citation
- 2006 NY Slip Op 52270(U) · 13 Misc 3d 142(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 Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 52270(U))
| Forrest Chen Acupuncture Servs., P.C. v Nationwide Mut. Ins. Co. |
| 2006 NY Slip Op 52270(U) [13 Misc 3d 142(A)] |
| Decided on November 17, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1810 K C.
against
Nationwide Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 19, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action.
Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.
Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff’s prima facie case to recover first-party no-fault benefits (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, due to plaintiff’s failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied
plaintiff’s motion for summary judgment (see Magnezit Med. Care P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129[A], 2006 NY Slip Op 50293[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130[A], 2005 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]).
As for defendant’s cross motion, it, too, should have been denied. Other than defense counsel’s conclusory affirmation stating that plaintiff “cannot show” timely mailing, defendant offers no admissible proof to establish that it never received plaintiff’s claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie [*2]showing entitling it to judgment as a matter of law.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006
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: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider did not establish its prima facie case because it failed to prove mailing of its claims, so the burden never shifted to the insurer.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider failed to prove mailing of its claims, while the insurer's counsel's conclusory affirmation was no admissible proof of non-receipt or late submission.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 64 (this one included) are in the same category.
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) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50473(U))The claimants failed to establish submission of their claims through mailing proof or the insurer's discrepant denial forms.
- Magnezit Med. Care, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50293(U))The providers failed to establish submission of the claim forms because their affidavit did not prove proper mailing.
- Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 51047(U))The insurer's investigators raised a triable coverage issue based on a founded belief that the injuries did not arise from an insured incident.
Similar decisions
- Forrest Chen Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 52281(U))The provider was entitled to summary judgment because its prima facie showing stood unopposed.
- WJJ Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2011 NY Slip Op 52288(U))The insurer failed to establish timely mailing of its denials asserting that the provider's fees exceeded the workers' compensation fee schedule.
- Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
- Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51496(U))The provider established prima facie entitlement to summary judgment, and the insurer submitted no opposition.
- North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U))The provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.