August 6, 2015

GL Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51239(U))

https://www.beynensonlaw.com/case-law/gl-acupuncture-p-c-v-geico-ins-co-2015-ny-slip-op51239u/

Court: Appellate Term, Second Department
Decided: August 6, 2015
Citation: 2015 NY Slip Op 51239(U) · 48 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141(A), 2015 NY Slip Op 51239(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 effective cancellation against an assignor outside the named insured's household because timely DMV filing was unproved. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed denial of the provider's motion. The insurer did not establish filing of its cancellation notice with the DMV within 30 days of cancellation's effective date, as Vehicle and Traffic Law § 313 (2) (a) requires. It therefore failed to establish cancellation against the assignor under Vehicle and Traffic Law § 313 (3). The provider likewise failed to establish an untimely denial or a timely denial that was conclusory, vague, or legally meritless under Insurance Law § 5106 (a).

Reported in New York Official Reports at GL Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51239(U))

[*1]

GL Acupuncture, P.C. v Geico Ins. Co.

2015 NY Slip Op 51239(U) [48 Misc 3d 141(A)]

Decided on August 6, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-723 Q C

GL Acupuncture, P.C. as Assignee of RONDELL QUICK, Appellant, August 6, 2015
against
Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 21, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). Thus, plaintiff’s motion for summary judgment was properly denied.

However, defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of cancellation, upon which its defense is based, with the Department of Motor Vehicles within 30 days of the effective date of the cancellation as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). Therefore, defendant has not demonstrated that the cancellation is effective with respect to plaintiff’s assignor, who was not the named insured or a member of his household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 06, 2015

Legal questions

A question 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 overdue (not paid or timely denied)

Held the provider's moving papers did not show the insurer failed to deny the claim within 30 days or that a timely denial was conclusory, vague or without merit, so its motion was properly denied.

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

Cited in this decision

A label shows how this decision treated the case it cites.

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.

Cited by

A label shows how the later decision treated this one.

Advanced Med. Care, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50130(U)) FollowedThe insurer failed to establish effective policy termination because it did not sufficiently prove timely filing of the termination notice with DMV. The insurer sought summary judgment dismissing the provider's assigned no-fault claims based on alleged termination of the policy.
Pravel, Inc. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 50457(U))The insurer failed to prove effective policy cancellation because it lacked admissible proof of timely filing with the DMV. The assignor was neither the named insured nor a member of the insured's household.
Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51977(U))The insurer failed to prove proper cancellation notice or that cancellation was effective against an assignor outside the insured's household.

Similar decisions

Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50830(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
Acupuncture Now, P.C v GEICO Ins. Co. (2018 NY Slip Op 51084(U))The insurer failed to establish that its policy-cancellation notice was mailed by registered or certified mail as Virginia law required.
GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))The insurer failed to prove the assignor's IME nonappearance through someone with personal knowledge.
Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices.
Perfect Point Acupuncture, P.C. v Auto One Ins. Co. (2012 NY Slip Op 51486(U))The insurer failed to prove that IME scheduling letters were mailed to the assignor, defeating summary judgment on its nonappearance defense.