October 5, 2010

Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51770(U))

https://www.beynensonlaw.com/case-law/friendly-physician-p-c-v-geico-ins-co-2010-ny-slip-op-51770u/

Court: Appellate Term, Second Department
Decided: October 5, 2010
Citation: 2010 NY Slip Op 51770(U) · 29 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Friendly Physician, P.C. v GEICO Ins. Co., 29 Misc 3d 128(A), 2010 NY Slip Op 51770(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 denials through a representative who began work after the alleged mailings or through other mailing evidence. The Appellate Term, Second Department, affirmed the provider's judgment entered upon grant of its summary judgment motion and denial of the insurer's cross motion. The provider's billing administrator established admissibility of its documents under CPLR 4518. The insurer supplied neither proof of actual mailing nor proof of standard mailing practices during the pertinent period. It therefore failed to establish freedom from preclusion of its proffered defenses under Fair Price Med. Supply Corp. v Travelers Indem. Co. and Presbyterian Hosp. in City of NY v Maryland Cas. Co., and established neither entitlement to dismissal nor a triable issue.

Reported in New York Official Reports at Friendly Physician, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51770(U))

[*1]

Friendly Physician, P.C. v GEICO Ins. Co.

2010 NY Slip Op 51770(U) [29 Misc 3d 128(A)]

Decided on October 5, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1371 Q C.

Friendly Physician, P.C. as Assignee of CATHERINE MOORE, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 28, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,268.73.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing administrator was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant raises no other issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not otherwise pass upon the propriety of the determination of the Civil Court with respect thereto.

Since the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish the actual mailing of the denial of claim forms or its standard office practices and procedures for the mailing of denial of claim forms [*2]during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Points of Health Acupuncture, P.C. v Geico Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defenses (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, as defendant failed to establish its entitlement to summary judgment or even demonstrate the existence of a triable issue of fact, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010

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: Claimant's proof held to make out its prima facie case

Rejected the insurer's appellate challenge and held the billing administrator's affidavit sufficient to make the annexed claim documents admissible under CPLR 4518, supporting the provider's prima facie case.

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, 513 (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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to prove timely mailing of its denials because its claim representative began working after the alleged mailing and no actual mailing or standard office practice for that period was shown.

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, 260 (this one included) are in the same category.

Cited in this decision

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Points of Health Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52445(U))The insurer failed to prove timely denial because its representative began employment after the alleged mailing and supplied no other mailing proof.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271)The insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.

Cited by

Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 22242)The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue.

Similar decisions

Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing.
New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.